Ryan v AF Concrete Pumping P/L (No 3)

[2013] NSWSC 630

Supreme Court

New South Wales

Medium Neutral Citation:

Ryan v AF Concrete Pumping P/L (No 3) [2013] NSWSC 630

Hearing dates:

22 May 2013

Decision date:

22 May 2013

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

1. Stay the execution of 15% of the judgment sum.

2. Order the first defendant to pay the plaintiff's costs of the application for a stay.

Catchwords:

STAY - pending appeal
COSTS - where judgment is in accordance with proposal made in correspondence

Legislation Cited:

Workers Compensation Act 1987

Category:

Procedural and other rulings

Parties:

Jeffrey Ryan (Plaintiff/Respondent)
A F Concrete Pumping Pty Ltd (First Defendant/Applicant for stay)

Representation:

Counsel:
CZ Callaway (Plaintiff/Respondent)
AR Davis (First Defendant/Applicant))
Solicitors:
Gillis Delaney (Plaintiff/Respondent)
Walker Hedges & Co (First Defendant/Applicant)

File Number(s):

2010/408063

Publication restriction:

Nil

Judgment

Introduction

1. The first defendant seeks a partial stay of execution of the judgment. The plaintiff opposes the application. On 14 March 2013, I ordered judgment in favour of the plaintiff, Jeffrey Ryan in the amount of $2,438,405 plus costs. The first defendant has paid $1.6 million of the judgment sum. Accordingly approximately 35 per cent of the judgment remains unpaid. The first defendant seeks a stay in respect of the outstanding amount of the judgment.

Reasons

1. The first defendant has filed a notice of an intention to appeal which does not name Mr Ryan as a respondent to the appeal. I am assured by Mr Davis, who appears for the applicant, that this was an oversight since there is a challenge proposed to be made to my assessment for the quantum of damages for which the first defendant is liable to Mr Ryan.

1. The solicitors sought unsuccessfully to resolve the question of a stay by agreement. The plaintiff, by letter from his solicitors to the solicitors for the first defendant dated 8 April 2013, indicated, in substance, that he would consent to a stay of 15 per cent of the judgment. The first defendant rejected that proposal and contended that if, it were successful on the appeal, that the difference to the damages would be greater than 15 per cent and accordingly it would not be sufficiently protected by a stay in that amount.

1. There are two aspects to the first defendant's proposed appeal. The first is there is a challenge to my finding of whole person impairment of 29 per cent which was based on the evidence of Dr Teychenné, neurologist, the only accredited WorkCover specialist called in the case. I do not regard the prospects of success of that matter as being high but it is a matter for others to judge whether that ground is made out. It is at least arguable.

1. The second aspect is a challenge to my finding that the plaintiff's employer would, if sued, not have been found liable. If the appeal on this ground is made out, the plaintiff's damages will be reduced: s 151Z of the Workers Compensation Act 1987.

1. Mr Callaway, who appears on behalf of the plaintiff, has submitted that the applicable cap to economic loss under s 34 of the Workers Compensation Act is $1838.70 per week. If there is a 20 per cent notional contribution by the employer, the judgment against the first defendant would be reduced to $2,263,250. This, according to Mr Callaway's calculation, would result in a reduction of approximately $180,000 in the existing judgment sum. Mr Davis does not accept that calculation and submitted that if the Court of Appeal considered the employer to be 20 per cent liable on a notional basis then the amount of the judgment would be concomitantly reduced by 20 per cent.

1. Mr Davis also submitted that I ought find that there was a significant risk that if money is paid to the plaintiff this money, or a substantial part of it, will be irrecoverable. There is no evidence to that effect in this application, although Mr Davis reminded me of evidence in the trial that the plaintiff suffered significant financial losses as a result of the first defendant's tort and that it could not be assumed that, if the appeal was successful, the money could rapidly be repaid and therefore there is a risk which should be mitigated by an order for a stay. I accept that there is some risk that Mr Ryan will not be able readily to pay the first defendant, if the latter's appeal is successful, if no stay of any part of the judgment is granted

1. In all the circumstances, and having regard to the need to do justice between the parties, I consider that it is appropriate to grant a stay. However, I do not think that the amount paid by the first defendant to date is sufficient to take account of the limited nature of the grounds of appeal.

1. Having regard to the relevant factors: whether the grounds of appeal are reasonably arguable and the likely quantum difference to the judgment if the appeal is successful, I propose to grant a stay of 15 per cent of the judgment sum. The dollar amounts that I have referred to obviously do not include interest which can be calculated by the solicitors.

Costs

1. In this matter the first defendant/applicant submitted that it has been partially successful and that I should order the plaintiff/respondent to pay its costs of the application or, alternatively, that there should be no order as to costs. Mr Callaway relied on his solicitor's letter of 8 April 2013. In all the circumstances I consider that the matter could have readily been resolved on the basis proposed by the plaintiff in the letter of 8 April 2013. Although it is not expressed formally in terms of an offer that would give rise to costs consequences, I consider that it is desirable that solicitors take more notice of approaches such as this which could resolve applications such as this one without the need for a hearing. In all the circumstances I think it is appropriate that the first defendant pay the plaintiff's costs of the application.

Order:

1. Stay the execution of 15% of the judgment sum.

2. Order the first defendant to pay the plaintiff's costs of the application for a stay.

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Decision last updated: 23 May 2013