Liddy v Bazley - [2012] NSWCA 426

Court of Appeal

New South Wales

Case Title: Liddy v Bazley

Medium Neutral Citation: [2012] NSWCA 426

Hearing Date(s): 10 December 2012

Decision Date: 10 December 2012

Before: Ward JA

Decision:
Application for stay granted on certain conditions as set out at [26].

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: PRACTICE AND PROCEDURE - application for stay of judgment pending appeal - insured appellants - reasonably arguable grounds of appeal - respondent not impecunious - sufficient risk of difficulty in recovering judgment debt if appeal successful - stay ordered on certain conditions so as to be fair to all parties

Cases Cited: Adeels Palace Pty Limited v Moubarak [2009] NSWCA 130
Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685
Bale & Anor v Mills (unreported, NSWCA, Handley AJA, 13 September 2010)
Cooper v Cooper (1976) 2 ChD 493
Firth v Sutton [2010] NSWCA 90
Merry v Nickalls (1873) LR 8 Ch App 206
Woolworths Ltd v Strong (No 2) [2011] 80 NSWLR 445

Texts Cited: Ritchie's Uniform Civil Procedure NSW

Category: Interlocutory applications

Parties: James Gervase Liddy, Stephen Gerard Cahill, Raymond John McClenahan and Ivan Anthony Simic (Appellants)
Michael Laurence Bazley (Respondent)

Representation

- Counsel: Counsel:
S Climpson (Appellants)
J Cairn (Respondent)

- Solicitors: Solicitors:
Yeldham Price O'Brien Lusk (Appellants)
Herbert Weller, Solicitor (Respondent)

File Number(s): CA 12/361667

Decision Under Appeal

- Before: Williams DCJ

- Date of Decision: 09 November 2012

- Court File Number(s): 10/071921

JUDGMENT (EX TEMPORE)

HER HONOUR: This is an application brought by the appellants for a stay of the judgment of Williams DCJ. His Honour entered a verdict and judgment in favour of Mr Bazley (the respondent in the present proceedings) in proceedings in the District Court in the sum of $270,019 and also made an order in favour of Mr Bazley in relation to his costs of those proceedings.
The application for a stay is put on the basis that the appellants, who are solicitors who have been found liable in professional negligence in connection with a failure to advise and progress a possible work injury damages claim by Mr Bazley (against a former employer in relation to injuries he suffered while an employee during the 1987 Parklea Prison riots), have appealed as of right from the judgment of Williams DCJ by Notice of Appeal filed on 20 November 2012.
There is evidence from the solicitor for the appellants that the appellants are insured and that there is no excess amount payable by the appellants towards this claim. It is submitted that if the appeal ultimately fails the respondent will receive payment in full in respect of his…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Liddy v Bazley

Details

AGLC: Liddy v Bazley [2012] NSWCA 426
Case: [2012] NSWCA 426
Decision Date: 10 December 2012

CaseChat Overview and Summary

In *Liddy v Bazley*, the appellants, who were insured parties, sought a stay of a judgment pending their appeal. The respondent was the party against whom the judgment had been entered.

The central legal issue before the Court was whether to grant a stay of the judgment. This required the Court to consider whether the appellants had reasonably arguable grounds of appeal and whether there was a sufficient risk of difficulty in recovering the judgment debt should the appeal be successful, particularly given the respondent was not impecunious.

The Court reasoned that a stay should be ordered if it was fair to all parties. Applying this principle, and finding that the appellants had reasonably arguable grounds of appeal and that there was a real risk of difficulty in recovering the judgment debt, the Court granted the application for a stay. The stay was made conditional upon terms designed to ensure fairness to both parties.

The application for a stay was granted on certain conditions, as detailed in paragraph [26] of the judgment.

Orders

Orders of the court

Application for stay granted on certain conditions as set out at [26].

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Case Title:	Liddy v Bazley
Medium Neutral Citation:	[2012] NSWCA 426
Hearing Date(s):	10 December 2012
Decision Date:	10 December 2012
Before:	Ward JA
Decision:	Application for stay granted on certain conditions as set out at [26]. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	PRACTICE AND PROCEDURE - application for stay of judgment pending appeal - insured appellants - reasonably arguable grounds of appeal - respondent not impecunious - sufficient risk of difficulty in recovering judgment debt if appeal successful - stay ordered on certain conditions so as to be fair to all parties
Cases Cited:	Adeels Palace Pty Limited v Moubarak [2009] NSWCA 130 Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685 Bale & Anor v Mills (unreported, NSWCA, Handley AJA, 13 September 2010) Cooper v Cooper (1976) 2 ChD 493 Firth v Sutton [2010] NSWCA 90 Merry v Nickalls (1873) LR 8 Ch App 206 Woolworths Ltd v Strong (No 2) [2011] 80 NSWLR 445
Texts Cited:	Ritchie's Uniform Civil Procedure NSW
Category:	Interlocutory applications
Parties:	James Gervase Liddy, Stephen Gerard Cahill, Raymond John McClenahan and Ivan Anthony Simic (Appellants) Michael Laurence Bazley (Respondent)
Representation
- Counsel:	Counsel: S Climpson (Appellants) J Cairn (Respondent)
- Solicitors:	Solicitors: Yeldham Price O'Brien Lusk (Appellants) Herbert Weller, Solicitor (Respondent)
File Number(s):	CA 12/361667
Decision Under Appeal
- Before:	Williams DCJ
- Date of Decision:	09 November 2012
- Court File Number(s):	10/071921