Mr D v Ms P

[2020] NSWCA 255

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Mr D v Ms P [2020] NSWCA 255

Hearing dates:

12 October 2020

Date of orders:

16 October 2020

Decision date:

16 October 2020

Before:

Macfarlan JA

Decision:

(1)   On the condition stated in order 3, order that the judgment of $979,550 ordered by Simpson AJ on 9 September 2020 be stayed to the extent of $679,550 of the judgment until determination of the appeal or further order.

(2)   On the condition stated in order 3, stay until determination of the appeal or further order the order for costs made by Simpson AJ on 16 March 2020.

(3)   The condition referred to in orders 1 and 2 is that within 7 days of the date of these orders, the appellant, Mr D, lodge with the Court and serve on the respondent a written undertaking to the Court that until determination of the appeal or further order: first he, whether by himself or by his attorney or other agent, will not dispose of or encumber any real property, securities or other assets owned by him, other than money in bank accounts; and secondly he will expeditiously prosecute his appeal.

(4)   Order that the costs of the appellant’s notice of motion for a stay be costs in the appeal.

Catchwords:

APPEAL – application for stay of primary judgment – part of judgment unchallenged – partial stay ordered

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 51.44

Cases Cited:

Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Category:

Procedural and other rulings

Parties:

Mr D (Appellant)
Ms P (Respondent)

Representation:

Counsel:
P Glissan (Appellant)
S Grey (Respondent)

Solicitors:
The Criminal Law Specialists (Appellant)
Clinch Long Woodbridge Lawyers (Respondent)

File Number(s):

2020/111665

Publication restriction:

Names of parties are suppressed

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

[2020] NSWSC 224

Date of Decision:

16 March 2020

Before:

Simpson AJ

File Number(s):

2017/361142

Judgment

1. MACFARLAN JA: This is an application for an order pursuant to r 51.44(1) of the Uniform Civil Procedure Rules 2005 (NSW) staying orders made by Simpson AJ in the Common Law Division.

2. Her Honour’s judgment of 16 March 2020 dealt with a claim by Ms P for damages in respect of Mr D’s alleged sexual assault of her on 7 occasions between 1995 and 2001 and his alleged physical (but not sexual) assault of her on one occasion in 2012. Mr D admitted four of the sexual assaults and also pleaded guilty to criminal charges in respect of them. He is presently serving a sentence of imprisonment. Her Honour found in Ms P’s favour and awarded damages of $853,550 and costs ([2020] NSWSC 224). The damages award was subsequently varied to an amount of $979,550 ([2020] NSWSC 1210).

3. By a judgment of 13 August 2020 Bell P granted Mr D leave under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) to institute appeal proceedings and ordered him to provide security for costs in the sum of $25,000 to be paid in tranches of $15,000 and $10,000 ([2020] NSWCA 174). Mr D has paid the first tranche. The second tranche is not yet required to be paid.

4. There is evidence on the stay application that Mr D is the owner of a property at Fern Bay with a value in the range of $510,000 to $540,000 (but subject to a bank mortgage presently securing approximately $220,000), that he has a credit balance in a bank account of about $21,000 and that he is the holder of a minority interest in a unit trust that owns property at Cooks Hill. There appears to be equity in the Cooks Hill property of between $910,000 and $1,160,000 of which Mr D would be entitled to one sixth if it were possible (which would be difficult) to realise his interest. The Fern Bay property was referred to in argument as his home.

5. Mr D’s counsel acknowledged at the hearing before me that a significant portion of the judgment was unchallenged because Mr D admitted (and was convicted of) four of the seven alleged sexual assaults. His counsel estimated that at least $300,000 of the monetary judgment was not in issue even when regard was had to Mr D’s complaints about the primary judge’s assessment of the quantum of Ms P’s damages.

6. Counsel was unable to refer the Court to any case in which a stay pending appeal was granted in respect of an unchallenged portion of a judgment. In light of the breadth of the Court’s power under r 51.44 to order a stay it is not possible to say that such a stay could never be granted. It can however at least be said that the task of establishing a case for such a stay is a formidable one. A successful party who obtains a judgment is prima facie entitled to enforce it. As Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 693-5 states, it is not necessary for an applicant to demonstrate “special” or “exceptional” circumstances to warrant the grant of a stay. Nevertheless, a reason for the grant of a stay must be shown. Otherwise the general rule stated in r 51.44(2) that the filing of an originating appellate process does not operate as a stay of the judgment given in the court below prevails.

7. Alexander v Cambridge Credit at 695 encourages courts to make a preliminary assessment of the merits of an appeal when a stay is sought. Mr D’s counsel put in respect of each of the three disputed sexual assaults an argument as to why the primary judge erred. Each of the submissions was directed to attacking her Honour’s decision on credit-based issues. None of them impressed me as strong, bearing in mind the difficulty of challenging that type of finding on appeal (see Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]-[29]). As a result, I could not assess the prospects of the appeal succeeding in respect of the challenged parts of the judgment as more than arguable, at best.

8. The basis for Mr D’s stay application, as stated by his solicitor in his affidavit of 20 September 2020, is that if Ms P enforces the judgment before the appeal is determined, Mr D will be unable to pay the second tranche ($10,000) of the security for costs Bell P ordered on 13 August 2020 and will be unable to fund his costs of the appeal.

9. As it appeared at the hearing before me that the parties had not discussed with each other the possibility of reaching agreement on the terms of a stay, I reserved judgment to afford them that opportunity. They were however unable to reach agreement.

10. My conclusion is that only a partial stay should be granted. As I have said, a large part of the judgment below (at least $300,000) is undisputed. There is no reason why Ms P should be precluded from enforcing at least that part of the judgment. If she can enforce that part of the judgment, she will be able to force the sale of Mr D’s property at Fern Bay.

11. Although the appeal as to the balance of the judgment is no more than arguable, I consider it appropriate to stay the judgment to the extent that it is disputed, on condition that Mr D provides an undertaking to the Court stating inter alia that until determination of the appeal or further order he, whether by himself or by his attorney or other agent, will not dispose of or encumber any of his property other than the amounts in his bank accounts. This should preserve almost all of his assets for the benefit of Ms P in the event that Mr D’s appeal is unsuccessful, whilst enabling Mr D to pay from his bank accounts the second tranche of the security for costs ordered by Bell P. I do not consider it appropriate to permit Mr D to draw on his assets other than his bank accounts for the payment of his costs of the appeal. To the extent that source is insufficient, there remains the possibility that his family, which has already provided him with $100,000 to pay legal costs, will assist him further.

12. I appreciate that no precise figure has been provided to the Court as to the amount of the judgment which is not challenged on appeal but in my view it is sufficient to work on the estimate given by Mr D’s counsel, as the precise figure is not significant for present purposes.

13. For the reasons above, I make the following orders:

1. On the condition stated in order 3, order that the judgment of $979,550 ordered by Simpson AJ on 9 September 2020 be stayed to the extent of $679,550 of the judgment until determination of the appeal or further order.

2. On the condition stated in order 3, stay until determination of the appeal or further order the order for costs made by Simpson AJ on 16 March 2020.

3. The condition referred to in orders 1 and 2 is that within 7 days of the date of these orders, the appellant, Mr D, lodge with the Court and serve on the respondent a written undertaking to the Court that until determination of the appeal or further order: first he, whether by himself or by his attorney or other agent, will not dispose of or encumber any real property, securities or other assets owned by him, other than money in bank accounts; and secondly he will expeditiously prosecute his appeal.

4. Order that the costs of the appellant’s notice of motion for a stay be costs in the appeal.

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Decision last updated: 16 October 2020