Melchior v Cattanach

[2000] QCA 373

[2000] QCA 373

COURT OF APPEAL

THOMAS JA

No 7868 of 2000

KERRY ANNE MELCHIOR                First Respondent
  (First Plaintiff)
and

CRAIG MELCHIOR  Second Respondent
  (Second Plaintiff)
and

STEPHEN ALFRED CATTANACH           First Appellant
  (First Defendant)
and

STATE OF QUEENSLAND                Second Appellant
  (Second Defendant)

BRISBANE

..DATE 13/09/2000

JUDGMENT

HIS HONOUR:  This is an application to stay a judgment given in favour of the plaintiffs for various sums totalling approximately $211,000.  The appeal contains grounds that might be described as fairly arguable. 

The plaintiffs are persons of modest means.  They have given evidence of their financial situation which includes the fact that they have a reasonable equity in their home.  I do not for a moment think that the plaintiffs are persons who would try to avoid their obligations by disposing of assets.  However, looking at the whole of the evidence I think that were the judgment to be satisfied at this stage and were the appeal then to be won by the appellants that there would be very likely a deficit or extreme difficulty in recovering the funds that would have been disbursed.

In the present situation, I think that an intermediate type of order is the best that can be made.  I note that the appellants had offered to provide $50,000 towards satisfaction of the judgment.  Of course, such a sum or even a greater sum than this is likely to disappear into the payment of costs of the action and outlays of various kinds incurred in its conduct.  Difficulty I think would be encountered in even recovering such payments from the various persons to whom it might be paid, but that can be overcome by an undertaking which has been offered by the solicitors for the plaintiff/respondents to repay whatever sums have been appropriated for professional costs or to outlays in respect of the litigation.

In all the circumstances, I will order that upon payment forthwith by the defendants to the plaintiffs' solicitors of $75,000 execution on the judgment be stayed.

There should also be an undertaking recorded as part of the order on the part of the respondents' solicitors to repay forthwith to the defendants upon demand in that behalf after determination of the appeal such sums as have been appropriated to professional costs or outlays in respect of the litigation.

The costs of the application should be each party's costs in the appeal.

Anything further, gentlemen?

MR NORTH:  Your Honour, the undertaking would entitle the defendants even the unsuccessful outcome of the appeal to demand repayment.  Perhaps it could be qualified at the end by "in the event of a successful appeal".

HIS HONOUR:  Yes.  Even that is too wide.  "In the event of the judgment being set aside".

MR NORTH:  "In the event of the judgment being set aside".

HIS HONOUR:  Yes.  It might be best if I give you the opportunity to confer in relation to the form of order and submit a draft.

MR NEWTON:  Certainly, your Honour.

HIS HONOUR:  That way you may be able to tidy up any other infelicities in what I have said.  Would it help if I direct the shorthand bureau to provide a copy of the initial draft that I have dictated?

MR NORTH:  Yes, your Honour.  And we could provide the draft either later this evening or first thing tomorrow morning.

HIS HONOUR:  Order as per draft, to be supplied by counsel and initialled by them.

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