Lewincamp v ACP Magazines Ltd (No 3)

LEWINCAMP v ACP MAGAZINES LIMITED (NO 3)
[2008] ACTSC 81 (2 SEPTEMBER 2008)

PROCEDURE – stay of orders – judgment sum and costs – not necessary to show special or exceptional circumstances for stay to be granted – reason to warrant exercise of discretion sufficient – plaintiff’s resources to repay – plaintiff’s and plaintiff’s legal representatives’ undertakings to Court

Held: application for stay dismissed – no sound reason for stay identified.

Court Procedures Rules 2006 (ACT) r 5301

Alexander v Cambridge Credit Corporation Ltd (Receivers appointed) (1985) 2 NSWLR 685
Barrington Tops Developments Pty Ltd v Low [2008] NSWSC 859
Park v Brothers [2003] NSWSC 1054

No. SC 578 of 2004

Judge:             Besanko J
Supreme Court of the ACT

Date:              2 September 2008

IN THE SUPREME COURT OF THE       )
  )          No. SC 578 of 2004
AUSTRALIAN CAPITAL TERRITORY    )

FRANK LEWINCAMP        

v

ACP MAGAZINES LIMITED

ORDER

Judge:  Besanko J
Date:  2 September 2008
Place:  Adelaide (via videolink with Canberra)

THE COURT ORDERS THAT:

1. The application for a stay of judgment be dismissed.

1. The defendant pay the plaintiff’s costs of the application for a stay.

BESANKO J:

1. This is an application by the defendant for a stay of orders I made on 23 July 2008 and 13 August 2008, respectively. On 23 July 2008 I ordered that there be judgment for the plaintiff against the defendant in the sum of $375,000. On 13 August 2008 I made orders (relevantly):

1.The defendant pay to the plaintiff interest on the damages awarded to the plaintiff fixed in the sum of $47,866.44.

2.The defendant pay to the plaintiff his costs of action assessed on the following basis:

(1)a party and party basis up to and including 12 June 2007;

(2)an indemnity basis from 12 June 2007 up to but excluding the application for these orders; and

(3)a party and party basis in relation to the application for these orders.

1. In addition to its application for orders, the defendant filed and served an affidavit of a solicitor which annexed its notice of appeal. The notice of appeal contains 13 grounds of appeal. The defendant made written submissions, and supplemented those submissions with oral submissions.

1. The plaintiff relied on two affidavits, one of the plaintiff and the other of his solicitor. The plaintiff’s affidavit establishes that he has the resources to repay the judgment if, as a result of a successful appeal by the defendant, he is required to do so. In his affidavit, the plaintiff undertakes to the Court to pay any part of the judgment sum which is not paid to his lawyers into a mortgage offset account which he can draw down on demand to repay the judgment moneys if required to do so.

1. The plaintiff has signed and will file an undertaking to the Court to repay the judgment moneys upon an order of the Court, and his senior and junior counsel have each signed undertakings to the Court to repay to the defendant the…