Pangallo v Smith & Anor

[2015] ACTSC 242

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Citation:

Pangallo v Smith & Anor

[2015] ACTSC 242

Hearing Date(s):

18 August 2015

DecisionDate:

18 August 2015

Before:

Robinson AJ

Decision:

See [10]-[12]

Category:

Principal Judgment

Catchwords:

PRACTICE AND PROCEDURE – Application for stay of execution of judgement.

Legislation Cited:

Court Procedure Rules 2006 (ACT)

Cases Cited:

Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685

Fox v Percy (2003) 214 CLR 118

Parties:

John Pangallo (Plaintiff)

Timothy Smith (First Defendant)

Insurance Australia Limited t/as NRMA Insurance (Second Defendant)

Representation:

Counsel

Mr Sharwood (Plaintiff)

Ms Burke (First and Second Defendants)

Solicitors

Ken Cush & Associates (Plaintiff)

Sparke Helmore Lawyers (First and Second Defendants)

File Number(s):

SC 160 of 2014

ROBINSON AJ:

1. By an application filed 11 August 2015, the Defendant in these proceedings, applies for a stay of execution of a judgement of $258,177 obtained by the Plaintiff in an action determined at trial by Associate Justice Mossop on 28 July 2015.

1. The Plaintiff, a pedestrian, was involved in a collision with a car on 20 September 2011.

1. There is a right of appeal to the Court of Appeal from this final judgement. No leave is required. No notice of appeal has yet been filed and served, although I was told this morning that a notice of appeal has been delivered to the registry, but it has not been stamped and returned. Accordingly, I am sitting in the trial division of the Court and not as a single member of the Court of Appeal.

1. Liability was contested at trial. My brief examination of the judgement reveals that there were issues of credit involved on liability, contributory negligence and also the assessment of damages. Some matters were the subject of corroboration and some were not.

1. In these circumstances, any proposed Appellant must confront cases such as Fox v Percy (2003) 214 CLR 118 and the natural caution exercised by a Court of Appeal on a rehearing.

1. The legal principles upon which a stay will be granted are well known. First, there is nothing provisional about the judgement. Ordinarily, the successful litigant is entitled to what has been called “the fruits of victory”. Against this, is the practical preservation of the efficacy of the right of appeal. Here, relevantly, it is argued that should the appeal be successful then a substantial portion of the judgement sum, if paid out, would be irrecoverable. It is quite clear that the applicant for a stay bears the onus of demonstrating a proper basis for a stay which will be fair to all parties: Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685, 694.

1. The Defendant has filed evidence that the Plaintiff is possessed of modest assets, has retired from the workforce and is in receipt of a pension, superannuation benefits and some rents from houses on a rural property.

1. No draft notice of appeal was proffered on the Application.

1. The Plaintiff will naturally have incurred liabilities from the conduct of these proceedings and be under liabilities to repay medical expenses and possibly fund on-going expenses. The Plaintiff also would be expected to have a liability to pay his lawyers involved in the proceedings.

1. The Plaintiff has not filed any evidence as to this and so I must assume that with the offer by the Defendant to pay half the value of the judgement concerned as the price of a stay of execution of the full judgement, then the Plaintiff must be happy with this outcome, pending the hearing of the appeal.

Order

1. I make the following orders:

(a)Upon the Defendant undertaking to the Court that it will file a notice of appeal within the time allowed for the institution of an appeal under the Rules and undertaking to prosecute the appeal expeditiously; and

(b)Upon the Defendant paying to the Plaintiff the sum of $129,088.50

Order that execution of the balance of the judgement be stayed pending further order of the Court.

Order that the costs of this application be costs in the cause.

I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Robinson.

Associate:

Date: