Suncorp Insurance & Finance v Hill

[1997] QCA 362

[1997]QCA 362

COURT OF APPEAL

PINCUS JA
MOYNIHAN J

AMBROSE J

Appeal No 2029 of 1997

SUNCORP INSURANCE AND FINANCE	Appellant
and
GLYNN ROBERT HILL	Respondent
BRISBANE

..DATE 22/09/97
PINCUS JA: There was an application before the Court for a stay of execution in respect of a

judgment given by the District Court on 6 February 1997. The judgment was given in an action

brought on a fire insurance policy and the principal dispute before the primary judge related to the

question of whether or not, as was asserted on behalf of the insurance company, now the applicant,

the plaintiff, now the respondent, had himself started the fire. The primary judge concluded that the

insurer had not proved that the plaintiff intentionally lit the fire and therefore the action succeeded.

Another issue before the primary judge was the question of a claim for compensation in respect of a

lost commercial opportunity.

The first thing which is necessary to consider, and that can be done briefly, is whether the appeal has

any substance. One might expect that it could be difficult for the applicant, as appellant, to displace

the judge's conclusion on the question of credit. But, on the other hand, not having the full facts of

the matter before us, as we typically do not in these cases, one could not say that that task would be

impossible.

Therefore, in my view, the appeal should be approached on the basis that it probably has some

substance.

The second question is whether or not the plaintiff/respondent would, if the appeal succeeded, be

able to repay the sum in question; on that issue it is not necessary to go into detail, because it is not

seriously contended that the plaintiff/respondent would be able to repay the money if it was simply

paid over to him now. The sum is of the order of $140,000 and he is a man without much financial

substance.

The question therefore becomes whether or not an offer which was put by Messrs Goodfellow and

Scott, solicitors, in a letter dated June 17, 1997, should have been accepted by the applicant. It seems to me unnecessary to set out the full terms of that offer; in substance, it contemplates that the

costs of the action will be paid together with the amount of the judgment, that the property on which

the destroyed building was situated will be cleared of mortgages by payment out of a mortgage debt

and that there will be a consent caveat to protect the position of the applicant. Apart from paying

out the costs and the mortgage on the property, said to be in the vicinity of $90,000, the solicitors

propose that, subject to some supervision by them, a building will be erected on the property while

the appeal is pending. The relevant paragraph says:

"Our client will organise a builder to re-construct the premises. We will supervise payments
to that builder. We will undertake not to pay anything to the builder except after he has
performed the relevant work which is covered by the payment. Again your equity is

improved in the property."

One of the objections which is made on behalf of the applicant to this proposal is that it would leave

the applicant unsecured. That is, if it paid over this full amount it would have some control because

of the caveat, but in the event of bankruptcy it would simply stand as an unsecured creditor; that

seems to me to be correct. However, as was pointed out by counsel for the applicant, that difficulty

could be covered if the existing mortgages on the property were replaced by a mortgage in favour of

the applicant.

The fire took place in 1993, about four years ago. The appeal was instituted in March 1997 and it

appears it will be heard within the next four or five months. The question of whether or not the offer

should have been accepted and whether the Court should force its acceptance on the applicant

seems to me to be one of some difficulty.

The respondent's proposal has some attractions, but it suffers from the disadvantage that it does not

appear likely to produce much benefit for the respondent/plaintiff himself pending the hearing of the appeal, it is likely to be fairly expensive to implement and also has some complexities. One which I

mention is the fact that the building which is to be erected on the property is said to be justified on

the basis that it would improve the applicant's security if it became a mortgagee, and that is so. But

that is based on the assumption that the building would be of a certain character; it is undesirable for

the order we make to be such as to be likely to induce further disputes as to the character of the

building and the amount expended upon it.

Putting the matter more generally, and I hope not too simply, we are being asked to adopt a

proposal to avoid the stay (which would ordinarily, in these circumstances, be granted) which is one

of some complexity and covers a period of only some months, without as it seems to me, producing

any very great benefit to the respondent.

Not without some hesitation, I would, for myself, reject the proposal which has been made on behalf

of the respondent. I would grant the stay of execution which is sought by the Notice of Motion

dated 18 August 1997. As to costs, it is said in the Notice of Motion the costs should be reserved.

Rather than reserve them, I would make the costs of the application for a stay costs in the appeal,

so that whoever succeeds in the appeal will get today's costs.

MOYNIHAN J: I agree.

AMBROSE J: I agree.

PINCUS JA: That will be the order.

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