Shuetrim v FSS Trustee Corporation

[2015] NSWSC 811

Supreme Court

New South Wales

Medium Neutral Citation:	Shuetrim v FSS Trustee Corporation [2015] NSWSC 811
Hearing dates:	23 June 2015
Decision date:	23 June 2015
Jurisdiction:	Equity Division
Before:	Stevenson J
Decision:	(1) I order that my orders of 19 June 2015 be stayed as against the second and third defendants pending determination of their appeals against my reasons of 24 April 2015 and my declarations and orders of 19 June 2015. (2) I make no order as to the costs of these applications.
Catchwords:	PROCEDURE – judgments and orders – notice of appeal – stay pending appeal – relevant factors
Legislation Cited:	Insurance Contracts Act 1984 (Cth)
Cases Cited:	Birdsall v Motor Trades Association of Australia Superannuation Fund Pty Ltd [2015] NSWCA 104 Shuetrim v FSS Trustee Corporation [2015] NSWSC 464 Shuetrim v FSS Trustee Corporation [2015] NSWSC 795 Woolworths Limited v Strong (No 2) [2011] NSWCA 72; 80 NSWLR 445
Category:	Procedural and other rulings
Parties:	Benjamin Shuetrim (Plaintiff) FSS Trustee Corporation (First Defendant) MetLife Insurance Ltd (Second Defendant) TAL Life Ltd (Third Defendant)
Representation:	Counsel: A Coombes (Plaintiff) J G Duncan (Second Defendant) S J Walsh (Third Defendant) Solicitors: Firths The Compensation Lawyers (Plaintiff) TurksLegal (Second Defendant) HWL Ebsworth Lawyers (Third Defendant)
File Number(s):	SC 2013/289552

EX TEMPORE Judgment

1. I heard these proceedings on 9 to 11 and 13 March 2015 and gave judgment on 24 April 2015: Shuetrim v FSS Trustee Corporation [2015] NSWSC 464. I pronounced final orders on 19 June 2015 for reasons I gave on that day: Shuetrim v FSS Trustee Corporation [2015] NSWSC 795.

2. MetLife and TAL have now filed a notice of intention to appeal. Those defendants seek a stay of the orders I made on 19 June 2015 pending resolution of those appeals.

3. Mr Shuetrim neither opposes nor consents to a stay.

4. The evidence adduced by MetLife and TAL establishes, on the face of it, that there is a risk that were the orders not stayed, Mr Shuetrim would be unable to repay the orders without difficulty or delay in the event that the appeals were successful. He appears to own no real property. He has not worked since November 2011, and since then has only received workers compensation benefits.

5. It cannot be said, and indeed is not said, that the appeals have no prospect of success. Indeed, the Court of Appeal may consider this case an appropriate vehicle to consider further the observations of Basten JA in Birdsall v Motor Trades Association of Australia Superannuation Fund Pty Ltd [2015] NSWCA 104, to which I referred in my 24 April 2015 judgment at [35].

6. In those circumstances, the usual practice is for a trial judge to grant a stay: see Campbell JA in Woolworths Limited v Strong (No 2) [2011] NSWCA 72; 80 NSWLR 445 at [68].

7. Both MetLife and TAL undertake that they will diligently prosecute the appeals and seek to have the appeals expedited.

8. There is no reason to doubt that MetLife and TAL have the capacity to pay the verdict to Mr Shuetrim if their appeals are dismissed. And interest is accruing in Mr Shuetrim's favour under s 57 of the Insurance Contracts Act 1984 (Cth) at rates which, I am told, exceed current market rates.

9. In all those circumstances, I propose to grant the stays sought.

10. I make the following orders:

1. I order that my orders of 19 June 2015 be stayed as against the second and third defendants pending determination of their appeals against my reasons of 24 April 2015 and my declarations and orders of 19 June 2015.

2. I make no order as to the costs of these applications.

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Decision last updated: 23 June 2015