Neradovsky v Burnett

[2015] NSWSC 1765

Supreme Court

New South Wales

Medium Neutral Citation:

Neradovsky v Burnett [2015] NSWSC 1765

Hearing dates:

24 November 2015

Decision date:

24 November 2015

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1) Direct the defendants to answer the call made for documents that reveal the limit of their indemnity and note that the defendants are in a position to answer that call forthwith.

 

(2) Grant a stay of order 1 made by Rothman J on 28 October 2015, namely, judgment for the plaintiff against the first and second defendants in the sum of $1,329,185.90, on condition that that amount be paid within seven days of the date of this order into an interest bearing account in the joint names of the solicitor for the plaintiff and solicitors for the defendants.

 (3) By consent, order that the costs of the motion filed on 17 November 2015 be costs in the cause, the cause being any appeal to the Court of Appeal.

Catchwords:

PRACTICE AND PROCEDURE – application for stay pending appeal – conditional stay – whether in the interests of justice to stay judgment – whether appropriate to stay orders relating to costs and disbursements

  PRACTICE AND PROCEDURE – call for documents to establish limit of indemnity of defendants’ insurance policy – direction made to answer call because of potential relevance to stay and to possible resolution of the proceedings

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Cases Cited:

Alexander v Cambridge Credit Corporation Ltd (Receivers and Managers Appointed) (1985) 2 NSWLR 685

Category:

Procedural and other rulings

Parties:

Alison Jane Neradovsky (Plaintiff)
Karl Burnett (First Defendant)
KB Legals Pty Ltd (Second Defendant)

Representation:

Counsel:
R Francois (Plaintiff)
R Sheldon SC (First and Second Defendants)

  Solicitors:
Watkins Tapsell Solicitors (Plaintiff)
Kennedys Law (First and Second Defendants)

File Number(s):

2011/408095

Judgment (EX TEMPORE – REVISED)

Introduction

1. The defendant applied by notice of motion filed on 17 November 2015 for a stay of orders made by Rothman J on 28 October 2015 following reasons published by his Honour on 2 October 2015.

2. The first such order made by his Honour was that there be judgment for the plaintiff against the first and second defendants in the sum of $1,329,185.90; the balance of the orders relate to costs; and interest on costs and disbursements. The costs have not yet been assessed.

3. The application for stay came before the duty judge this morning as Rothman J is presently on leave. It was referred by the duty judge to me for determination.

The evidence

4. In support of the motion, Mr Sheldon SC, who appears on behalf of the defendants, read an affidavit of Veronica Chapman of 4 November 2015 and tendered a report of Dolman Bateman dated 26 February 2014. Ms Francois, who appears on behalf of the plaintiff in opposition to the stay, read an affidavit of Tiana Daly of 23 November 2015.

5. I have had the opportunity to read his Honour's reasons for judgment. It would not be appropriate for me to express any view (and nor did either party suggest that I ought) on the prospects of success of any appeal against his Honour's judgment whether as to liability or quantum.

6. I note that the defendants filed a notice of intention to appeal on 20 October 2015. However, no notice of appeal has yet been filed. The due date for any such notice is 2 January 2016.

The plaintiff’s call for documents that record the limit of indemnity of the defendants’ insurance policy with LawCover

7. The plaintiff has made a call for the documents which will reveal the limit of the indemnity of the insurance policy applicable from LawCover in respect of the defendants in order that the plaintiff can assess what risk she runs, particularly in relation to costs if, as she apprehends, the limit of the indemnity of the policy is $1.5 million.

8. The defendants resisted production in answer to the call on the footing that the insurance policy is confidential, and that it is not necessary to determine the issues in the notice of motion that the insurance policy, or such relevant documents as will reveal the limit of the indemnity, be produced.

9. As to the question of the production of such documents, in my view the defendants ought be required to produce such documents in answer to the call. While they may not be strictly relevant to the application for stay of the judgment in a money sum, they are potentially relevant to any application for stay of the other orders (as to costs and disbursements) made by his Honour on 28 October 2015.

10. I am required by the Civil Procedure Act2005 (NSW) to take into account matters such as the interests of justice and the administration of justice. It may be that, were the plaintiff aware of the limit of the indemnity of the insurance policy (having regard to the defendants' alleged impecuniosity), the resolution of the proceedings may well be facilitated.

11. In these circumstances I am satisfied that it is appropriate to direct the defendants to answer the call, and note the defendants are in a position to answer that call forthwith.

The defendants’ application for a stay

12. The principles that apply to whether a stay ought be granted pending an appeal, or a possible appeal, are well established. A single judge (usually, for practical reasons, the trial judge), as well as the Court of Appeal, may grant a stay pending appeal. The onus is on the applicant for a stay to demonstrate a proper basis for a stay that will be fair to all parties: Alexander v Cambridge Credit Corporation Ltd (Receivers and Managers Appointed) (1985) 2 NSWLR 685.

13. Having regard to the collaborative approach taken by counsel appearing for the parties today before me, I am satisfied that it is in the interests of justice to grant a stay of order 1 made by his Honour; namely, judgment for the plaintiff against the first and second defendants in the sum of $1,329,185.90, on condition that that amount be paid within seven days of the date of this order into an interest-bearing account in the joint names of the solicitor for the plaintiff and the solicitors for the defendants.

14. I am not persuaded that it is in the interests of justice to stay the balance of the orders which, as I have said, relate to costs and disbursements. The costs assessment process has not yet begun and it may well be that the matters in issue have been determined by the time any such costs have been quantified.

15. Accordingly, the stay will be granted on the terms I have indicated.

Orders

16. I make the following orders:

1. Direct the defendants to answer the call made for documents that reveal the limit of their indemnity and note that the defendants are in a position to answer that call forthwith.

2. Grant a stay of order 1 made by Rothman J on 28 October 2015, namely, judgment for the plaintiff against the first and second defendants in the sum of $1,329,185.90, on condition that that amount be paid within seven days of the date of this order into an interest bearing account in the joint names of the solicitor for the plaintiff and solicitors for the defendants.

3. By consent, order that the costs of the motion filed on 17 November 2015 be costs in the cause, the cause being any appeal to the Court of Appeal.

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Decision last updated: 25 November 2015