Jandsen Pty Ltd v Welsh

[2009] NSWCA 33

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Jandsen Pty Ltd v Welsh [2009] NSWCA 33

FILE NUMBER(S):
40077 of 2008

HEARING DATE(S):
9 February 2009

EX TEMPORE DATE:
9 February 2009

PARTIES:
Jandson Pty Ltd  - Applicant
Judith Carol Welsh -Respondent

JUDGMENT OF:
McColl JA     

LOWER COURT JURISDICTION:
Court of Appeal

LOWER COURT FILE NUMBER(S):
CA 40077/08

LOWER COURT JUDICIAL OFFICER:
Giles JA, MAcfarlan JA, Hammerschlag J

LOWER COURT DATE OF DECISION:
3 December 2008

LOWER COURT MEDIUM NEUTRAL CITATION:
[2008] NSWCA 317

COUNSEL:
D A Priestly for the Applicant
M M Fraser for the Respondent

SOLICITORS:
Thompson Cooper Lawyers for the Applicant
Brydens Compensation Lawyers for the Respondent

CATCHWORDS:
Practice and Procedure – application for stay pending application for special leave

LEGISLATION CITED:

CATEGORY:
Procedural and other rulings

CASES CITED:
Jandson Pty Ltd v Welsh [2008] NSWCA 317
Sibuse Pty Ltd v Shaw (No 2) (1988) 13 NSWLR 125
TCN Channel 0 Pty Ltd v Antoniadis (No 2) (1999) 48 NSWLR 381

TEXTS CITED:

DECISION:
1. Upon the applicant undertaking to prosecute the application for special leave to appeal with due diligence, the judgment of the Court of Appeal dated 3 December 2008 is stayed pending disposition of the application for special leave to appeal and, if that application be successful, pending disposition by the High Court of the appeal.   2. Costs of the notice of motion be costs in the cause. 

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40077/08

McCOLL JA

Monday 9 February 2009

JANDSON PTY LTD  v  JUDITH CAROL WELSH

Judgment ex tempore

1. McCOLL JA:     The applicant, Jandson Pty Ltd, moves on a notice of motion dated 30 January 2009 for a stay of the judgment and orders of this Court made on 3 December 2008, pending the hearing of an application for special leave to the High Court of Australia.  The Court dismissed an appeal from a decision of Ashford DCJ in which her Honour found that the applicant owed a duty of care to the respondent which had been breached in circumstances where the respondent was injured when she fell down two steps onto a timbered area of the floor in a display home owned and occupied by the applicant for commercial purposes: Jandson Pty Ltd v Welsh [2008] NSWCA 317. Her Honour awarded the respondent damages in the sum of $331,938.

2. The issue in the Court of Appeal turned largely on the question whether the applicant ought reasonably to have foreseen that the respondent, or a person in her class exercising reasonable care for his or her own safety, might have been injured by stumbling or falling down the steps: judgment (at [42]). Macfarlan JA (with whom Giles JA agreed) concluded that Ashford DCJ had not erred in her conclusion that the appellant had breached its duty of care.  His Honour acknowledged (at [43]) that the case was not an easy one and was perhaps close to the borderline.  Nevertheless he decided that the trial judge’s…