Young v Annis-Brown t/as Lincoln Smith & Co (No 3)
[2011] NSWSC 1267
•20 October 2011
Supreme Court
New South Wales
Medium Neutral Citation: Young v Annis-Brown t/as Lincoln Smith & Co & Anor (No 3) [2011] NSWSC 1267 Hearing dates: 20 October 2011 Decision date: 20 October 2011 Jurisdiction: Equity Division Before: Black J Decision: Stay of orders varied
Catchwords: PRACTICE AND PROCEDURE - stay of costs judgment. Legislation Cited: - Uniform Civil Procedure Rules 2005 (NSW) r 41.3 Cases Cited: - Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
- Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737Category: Interlocutory applications Parties: Maureen Mary Young (Plaintiff)
Wayne Vincent Annis-Brown t/as Lincoln Smith & Co (Defendant)Representation: Counsel:
J. Jobson (Plaintiff)
M.J. Stevens (Defendant)
Solicitors:
Beazley Singleton (Plaintiff)
Lincoln Smith & Co (Defendant)
File Number(s): 2010/00100783, 2010/00214241, 2011/00094912
Judgment
I delivered judgment in proceedings number 2011/00094912 ("Costs Assessment Appeal") [2011] NSWSC 890 on 17 August 2011. I heard submissions as to the costs of those proceedings and associated proceedings on 15 September 2011 and delivered a judgment as to costs on 26 September 2011. In that judgment, I noted my understanding that Mr Annis-Brown conceded that I should stay the judgment for 28 days and, if an appeal from my judgment in the Costs Assessment Appeal was brought within that period, until the determination of that appeal by the Court of Appeal. I also indicated that I would order such a stay, subject to further order of the court. The stay which I then ordered was intended to reflect the extent of the concession which had been made by Mr Annis-Brown before me. The grant of that stay did not reflect the ordinary position that Mr Annis-Brown had the benefit of my judgment in his favour, unless and until that judgment was set aside by the Court of Appeal.
Mr Annis-Brown has, very fairly, raised a question whether the extent of the stay which I granted was wider than the concession which he had made in oral submissions before me on 15 September. I am satisfied that the concession made by Mr Annis-Brown before me was limited to the question of a stay of payment of funds out of Court under UCPR rule 41.3, which is dealt with in paragraph 4 of the orders made in my judgment of 26 September 2011 and did not extend more widely to a stay of orders for costs in the various proceedings.
Ms Young has argued before me that the stay should extend more widely, even in the absence of consent to it by Mr Annis-Brown, because the effect of a successful application for leave to appeal and a successful appeal in the Costs Assessment Appeal would be to impact the basis of the costs orders in those proceedings and in the other associated proceedings.
I accept that it is possible, although by no means certain, that a successful appeal in the Costs Assessment Appeal could affect the orders for costs in the other proceedings, and it is very likely to affect the order for costs in the Costs Assessment Appeal. Having said that, the question whether a wider stay should be ordered is to be determined by the principles summarised in the decision of the Court of Appeal in Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 and Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737. These principles include that a successful party is prima facie entitled to the fruits of the judgment obtained; the onus is upon the applicant to demonstrate a proper basis for a stay that will be fair to all parties; the mere filing of an appeal will not of itself provide a reason or demonstrate that there is an appropriate case or discharge the onus that the applicant for the stay bears; the court has a discretion as to whether or not to grant a stay, and if so, as to the terms that would be fair; and the court will weigh considerations such as the balance of convenience and the competing rights of the parties. A number of other applicable considerations are identified in those decisions, including any risk that the appeal will be rendered nugatory if a stay is not granted. I have had regard to those other factors in considering this application.
In the present circumstances, Mr Annis-Brown is prima facie entitled to the fruits of his judgment in respect of the Costs Assessment Appeal as was properly recognised by Ms Young in not contesting his entitlement to an order for costs in those proceedings. His concession as to a stay of the order for the payment of funds out of court was, with respect, a practical and sensible concession but does not require him to extend that concession to the orders as to costs. There is no evidence before me to suggest that, if a costs assessment process were commenced or indeed if it were concluded and a costs certificate were issued in favour of Mr Annis-Brown, the effect of that would be to in any way stultify the appeal or deprive Ms Young of the successful fruits of an appeal. I accept that the strength of the grounds of appeal is a relevant factor. However, the case law has recognised that it is invidious for a first instance court to be asked to assess the prospects of a successful appeal from its considered judgment and Ms Young does not ask me to do so.
Having regard to these factors, I do not consider that the stay should be extended to the orders for costs, where the extension of that stay would not be made by consent.
Accordingly, I set aside order 5 made by me in my judgment dated 26 September 2011 and make the following order in its place:
Subject to further order, paragraph 4 of the orders made by me on 26 September 2011 be stayed to 4pm on 24 October 2011 and, if an appeal or application for leave to appeal is brought by Ms Young from my judgment in proceedings 2011/00094912, then until final judgment in that appeal.
I should note that I have varied that order to reflect the fact that, any application by Ms Young would be brought as an application for leave to appeal.
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Decision last updated: 27 October 2011
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