Transpacific Cleanaway Pty Ltd v Cairns

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Transpacific Cleanaway Pty Ltd v Cairns [2012] NSWCA 294

Hearing dates:

3 September 2012

Decision date:

03 September 2012

Before:

Macfarlan JA

Decision:

(1) I order that the judgment of McLoughlin DCJ in this matter dated 26 April 2012 be stayed pending determination of this appeal or until further order, whichever occurs first.

(2) I order that the costs of the application for a stay be costs in the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - application for stay of judgment pending appeal - risk that respondent will be unable to repay judgment sum without difficulty or delay if appeal succeeds - need for money pending appeal not identified by respondent - difficulty of enforcement of judgment for restitution of judgment sum

Cases Cited:

Woolworths Ltd v Strong (No 2) [2011] NSWCA 72

Category:

Procedural and other rulings

Parties:

Transpacific Cleanaway Pty Ltd (Appellant)
Thomas Cairns (Respondent)

Representation:

Counsel:
D Villa (Appellant)
M M Fraser (Respondent)
Solicitors:
McCabes Lawyers Pty Ltd (Appellant)
Castagnet Lawyers (Respondent)

File Number(s):

CA 2012/164391

 Decision under appeal 

Citation:

Thomas Cairns v Transpacific Cleanaway Pty Limited

Date of Decision:

2012-04-26 00:00:00

Before:

McLoughlin SC DCJ

File Number(s):

DC 2010/383956

Judgment

1. HIS HONOUR: This is an application by the appellant for the stay of a judgment dated 26 April 2012 for $605,716 (now amended by agreement to $606,501) awarded in favour of the respondent by McLoughlin DCJ. The proceedings related to an injury suffered by the respondent in the use of a footpath on which the appellant had placed a hose. As Campbell JA pointed out in Woolworths Ltd v Strong (No 2) [2011] NSWCA 72 at [68], this Court usually grants a stay of a first instance judgment pending appeal where there is a risk that the respondent to the appeal "will be unable to repay the money without difficulty or delay if the appeal were to succeed."

1. In my view such a risk exists in the present case. The respondent has adduced evidence that he is the co-owner of a house at Bondi asserted by a property service organisation to be valued at $1,555,000. However, as the estimate is not one of a registered valuer, it carries little, if any, weight. The respondent says that the house is subject to a mortgage upon which $706,000 is outstanding. The house is the home of the respondent, his co-owner who is his partner, and their child. There is no evidence as to the relative shares of the respondent and his partner in the house.

1. The only other evidence concerning the…