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

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.
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).
By a judgment of 13 August 2020 Bell P granted Mr D leave under s 4 of the Felons (Civil…

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 Mr D v Ms P

Details

AGLC: Mr D v Ms P [2020] NSWCA 255
Case: [2020] NSWCA 255
Decision Date: 16 October 2020

CaseChat Overview and Summary

Mr D sought a stay of a judgment granted by Simpson AJ on 9 September 2020, pending the determination of his appeal. The primary judgment involved a sum of $979,550, a portion of which remained unchallenged by Mr D. The application concerned the extent to which the judgment and a separate costs order made on 16 March 2020 should be stayed.

The central legal issue before Macfarlan JA was whether to grant a partial stay of the primary judgment and the costs order. This required the court to consider the conditions under which such a stay would be appropriate, particularly given that part of the judgment was not being appealed.

Macfarlan JA ordered a partial stay of the judgment, specifically of $679,550 of the $979,550 awarded, and a stay of the costs order. This stay was conditional upon Mr D providing a written undertaking to the Court within seven days. The undertaking required Mr D not to dispose of or encumber his real property, securities, or other assets (excluding bank accounts) and to prosecute his appeal expeditiously. The costs of the stay application were made costs in the appeal.

Orders

Orders of the court

(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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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