Young v Hones (No 4)
[2015] NSWSC 792
•10 June 2015
Supreme Court
New South Wales
Medium Neutral Citation: Young v Hones (No 4) [2015] NSWSC 792 Hearing dates: 10 June 2015 Date of orders: 10 June 2015 Decision date: 10 June 2015 Before: Garling J Decision: No further order made
Catchwords: PROCEDURE – civil – order seeking confirmation that stay on costs orders has been dissolved – alternative order sought to dissolve stay – stay made “until further order” – whether stay order made is still in existence – regard to principle of finality of litigation – held that an interlocutory order granted “until further order” ceases when proceedings are finally determined Legislation Cited: Not Applicable Cases Cited: Fatimi Pty Ltd v Bryant [2002] NSWSC 750
Klewer v Official Trustee in Bankruptcy (No 2) [2010] NSWCA 258
Young v Hones (No 2) [2013] NSWSC 1429
Young v Hones [2014] NSWCA 337.
Young v Hones [2015] HCASL 73.Texts Cited: Not Applicable Category: Procedural and other rulings Parties: Margo Young (P)
Keith Brian Hones (D1)
Jason Hones (D2)
Ian Hemmings (D3)
Hughes Trueman Pty Ltd (D4)
Stephen Perrens (D5)Representation: Counsel:
Solicitors:
R Newell (P)
B McManus (D1, D2)
P Horvath (D3)
R Withana (D4, D5)
L C Muriniti & Associates (P)
Colin Biggers & Paisley (D1, D2)
Moray & Agnew (D3)
Kennedys (D4, D5)
File Number(s): 2010/41007 Publication restriction: Not Applicable
___________________________________________________________________
EX TEMPORE Judgment
-
On 27 September 2013, for the reasons which I then published in Young v Hones (No 2) [2013] NSWSC 1429, I dismissed the claim brought by Ms Young against each of the defendants.
-
In a judgment published on 1 May 2014, I made orders that the plaintiff pay the costs of each of the defendants. Those orders provided for costs to be paid in specified lump sum amounts. On that day, I also made an order in the following terms:
"Order, until further order, that orders 2, 3 and 4 be stayed".
Orders 2, 3 and 4 were the lump sum costs orders.
-
On 1 October 2014, the Court of Appeal delivered judgment in respect of an appeal by Ms Young from my decision of 27 September 2013. The Court of Appeal ordered that the appeal be dismissed with costs: Young v Hones [2014] NSWCA 337.
-
An application for special leave to appeal against the decision of the Court of Appeal was made but was dismissed by the High Court of Australia on 6 May 2015: Young v Hones [2015] HCASL 73.
-
After the High Court decision, an application was made to relist the proceedings before me.
-
The proceedings have come before me today. The defendants each seek an order confirming that the stay granted by me on 1 May 2014, with respect to the costs orders has been dissolved or, alternatively, an order dissolving that stay.
-
Counsel for Ms Young opposes the orders and submits that in circumstances which he anticipates will be more fully described in a judgment to be delivered in the Land and Environment Court in due course by Sheahan J, a basis will be exposed which will enable either or both of two steps to be taken with respect to the costs orders in this Court. Those steps are either that his client will be entitled to set off the obligation she has consequent upon the costs orders in this Court against costs or other orders that may be claimed, and made in the Land and Environment Court or, alternatively, a basis will arise for the making of an application in this Court for a permanent stay of the costs orders made on 1 May 2014.
-
It seems to me that the first question which needs to be determined is whether the stay which I granted on 1 May 2014, is still in existence and continues to be operative. Had the Court of Appeal made an order dealing expressly with the stay, then it would not be necessary for me to determine this question. However the orders of the Court of Appeal of 1 October 2014, did not expressly deal with the stay on the costs orders. It seems that none of the parties drew the issue of the stay to the attention of the Court of Appeal at the time judgment was delivered.
-
In those circumstances, it is necessary to consider whether the order that I made for a stay "until further order" continues to operate, or should be construed as continuing to operate after the final determination of the proceedings by the Court of Appeal.
-
It is not in doubt that when the stay was granted, the basis for it was to enable the appeal to take place and be determined prior to the costs orders taking effect.
-
My attention has been drawn to a decision of the Court of Appeal in Klewer v Official Trustee in Bankruptcy (No 2) [2010] NSWCA 258, where the Court, comprising McColl JA, Campbell JA and Sackville AJA, expressed the view in obiter dicta that an order for a stay which was expressed in similar terms to that pronounced here, ceased to be operative when the Court's final orders were pronounced.
-
In my view, a stay which is granted until further order or perhaps expressed differently, an interlocutory order granted until further order, operates until the final determination of the proceedings, or until a further order is made, whichever happens first. The intent of such an order is to restrain the parties until final determination of their rights.
-
I am persuaded by the reasoning, brief though it is, of the Court of Appeal in Klewer (No 2), and by the authorities to which the Court of Appeal makes reference in that decision, in particular the remarks of Campbell J in Fatimi Pty Ltd v Bryant [2002] NSWSC 750 at [228]-[232]. But more importantly, I am persuaded that that is so by an analysis of first principle.
-
The final determination of proceedings is an expression by the Court of the bringing to an end of the proceedings. The phrase or principle of "finality of litigation", is such that the administration of justice accepts that when a case is finally determined, it is determined, only subject to an appeal, for all time. It would be a curious result if an interlocutory motion or order which remained outstanding after a final determination continued in existence so that, notwithstanding that final determination, the parties would be obliged to continue to litigate all such interlocutory issues in the proceedings to final determination of each of those interlocutory issues. The better view is that, in my opinion, any interlocutory order granted until further order ceases to be operative when the proceedings are finally determined.
-
Accordingly, in my view, the stay granted by me on 1 May 2014, with respect to the costs orders, has ceased to be operative by reason of the final determination of the proceedings by the orders of the Court of Appeal made on 1 October 2014.
-
If the plaintiff, Ms Young, wishes to move the Court for any further stay then it will be necessary for an application to be made by Notice of Motion supported by evidence in affidavit form, for notice to be given to other parties, and for the matter to be dealt with in the ordinary course of listing arrangements. In making that observation, I am not expressing any view as to whether such an application would be open to be made nor that there is any proper basis for such an application to be made.
-
It will very much depend upon the content of the application, the time at which it is made and the circumstances in which it arises, and the evidence put before the Court, as to whether those matters are answered favourably to the applicant.
-
For those reasons, I decline to make any further order today in these proceedings.
**********
Decision last updated: 18 June 2015
4
5
1