Bourke & Rayner t/as Air Manymak v Peter Jeffs [2006] NTSC 38

PARTIES: MICHAEL JOHN BOURKE & ELIZABETH RAYNER trading as AIR MANYMAK

v

PETER JEFFS

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO: AP2 of 2006 (20017216)

DELIVERED: 26 May 2006

HEARING DATES: 23 March 2006

JUDGMENT OF: THOMAS J

CATCHWORDS:
PROCEDURE -- COSTS -- INTERLOCUTORY APPLICATION -- STAY OF EXECUTION

Procedure - costs - interlocutory application - stay of execution- application unreasonable as matter resolved- actions of appellant not unreasonable

Supreme Court Rules 1987 (NT) r63.18

REPRESENTATION:

Counsel:
Appellants: I Morris
Respondent: W Priestley

Solicitors:
Appellants: Hunt & Hunt
Respondent: Priestleys

Judgment category classification: C
Judgment ID Number: tho200607
Number of pages: 7

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Bourke & Rayner t/as Air Manymak v Peter Jeffs [2006] NTSC 38
No. AP2 of 2006 (20017216)

BETWEEN:

MICHAEL JOHN BOURKE & ELIZABETH RAYNER trading as AIR MANYMAK
Appellants

AND:

PETER JEFFS
Respondent

CORAM: THOMAS J

REASONS FOR JUDGMENT

(Delivered 26 May 2006)

[1] The defendants/appellants in these matters have lodged a notice of appeal in respect of the decision of the Court delivered on 12 January 2006.

[2] Solicitors for the defendants/appellants issued a summons on 20 March 2006 for hearing on 23 March 2006 seeking a stay of execution of a portion of the judgment, pending the appeal. The application for a stay of execution was resolved between the parties and no order was sought from the Court.

[3] Mr Priestley, on behalf of the plaintiff/respondent, sought an order for costs on the application for a stay of execution of the judgment. Mr Priestley submitted that the application for a stay was unreasonable as the offer to resolve the matter had been accepted prior to the application being made.

[4] On 23 March 2006, the defendants/appellants withdrew the application for a stay of execution of judgment. The application on summons was dismissed. The summons seeking the stay of execution was filed on 20 March 2006. This summons was supported by the affidavit of Pamela Kay Tregear sworn 20 March 2006. The affidavit details the history of the correspondence between the parties prior to the issue of the summons. The relevant matters are as follows:

• On 18 January 2006, solicitor for the appellant advised the respondent of an intention to appeal and that they would be making an application to stay the judgment.

• On 8 February 2006, the notice of appeal was filed.

• On 22 February 2006, under cover of letter from solicitors for the appellants to solicitors for the respondent, the appellants forwarded cheques in part payment of the judgment amount.

• On 23 February 2006, solicitors for the appellants forwarded a further letter to solicitors for the respondent confirming they were proceeding with an application for a stay of execution on the remainder of the judgment. They also sought information as to how the respondent could repay any overpayments in the event the appeal was successful.

• On 23 February 2006, solicitors for the respondent forwarded a letter to solicitors for the appellants stating that if the appeals were successful the respondent was in a position to repay any amounts by which the judgment might be reduced. The letter requested solicitors for the appellants to pursue the application for a stay without further delay, or the respondent would proceed to enforce judgment.

[5] During the course of submissions, the Court was referred to three further letters. The first is letter dated 13 March 2006 from solicitors for the respondent to solicitors for the appellants demanding balance of the judgment be paid forthwith or enforcement proceedings would be commenced. There was an offer by the respondent not to tax or enforce recovery of legal costs, disbursements or interest on the judgment until after the decision on the appeal, and cross appeal, had been delivered. This it was stated would be some protection to the appellants’ insurer if the respondent’s damages were reduced on appeal.

[6] On 22 March 2006 a letter was forwarded by facsimile from solicitors for the appellants to solicitors for the respondent seeking clarification of the offer not to take further action re taxation and other matters.

[7] Solicitors for the respondent replied by letter dated 22 March 2006, which omitting formal parts, stated:

“By way of clarification our proposal is as follows:

(i) The defendant’s insurer pays the outstanding judgment sums to the plaintiffs within the next 14 days and does not proceed with a stay application.

(ii) If either or both damages awards are reduced on appeal the defendant may set such reduction(s) off against such sums as may be due to the plaintiffs (or either of them) for costs and interest.

(iii) The plaintiffs shall not tax costs or enforce the payment of interest until the appeals have been disposed of.
Your letter of 22 March 2006 accurately summarises our proposition except that it makes no mention of the entitlement of each plaintiff to interest on the outstanding judgment sum.”

[8] These letters were handed to the Court to read but were not tendered. Subsequently with the consent of the parties, copies of these three letters were provided to me. I will now mark those letters Exhibits 1, 2 and 3 respectively.

[9] I note the last two letters post dated the date on which the summons seeking a stay of execution of the judgment was filed, that date being 20 March 2006. These last two letters were forwarded one day before the summons was scheduled to be heard, that date being 23 March 2006.

[10] When the matter was called in Court on the morning of 23 March 2006, Mr Morris on behalf of the appellants, advised the Court that as the matter had been resolved, the appellants did not seek any order on the summons to stay execution of the judgment.

[11] Mr Priestley, on behalf of the respondent, seeks cost of the application on the basis that the application was unreasonable because the matter had been resolved prior to the application being made.

[12] There were also submissions made by both parties on the issue of who bore the onus of establishing whether or not the respondent could repay any money which may be found, by the Court of Appeal, to be in excess of the respondent’s entitlements. No authority was put to the Court for the appellants’ proposition that the respondent was required to put forward a proposal as to how there could be repayment of the judgment sum, if that was a consequence of the decision of the Court of Appeal. Mr Priestley, on behalf of the respondent, submitted that the onus was upon the appellants to demonstrate that the respondent would not be able to repay any amount which exceeded the ultimate judgment for damages in this matter. Ultimately the parties resolved this matter between themselves.

[13] The essential basis for the respondent seeking costs is their assertion that it was unreasonable on the part of the appellants to pursue the stay application when it had already been resolved.

[14] I do not propose to make an order for costs, as sought by counsel for the respondent, for the following reasons.

[15] This is an interlocutory application. The normal rule on interlocutory applications is as set out in Order 63.18 of the Supreme Court Rules which states as follows:

“Each party shall bear his own costs of an interlocutory or other application in a proceeding, whether made on or without notice, unless the Court otherwise orders.”

[16] An application for a stay of execution of the judgment is not an unusual application to come before the Court when there is a substantial award of money awarded to one of the parties.

[17] The respondent had been exhorting the appellants to proceed with the application for a stay of execution of the judgment or they would proceed to take action to enforce judgment. This is set out in the letters which have been referred to.

[18] The appellants filed the application for a stay of execution on 20 March 2006. Negotiations between the parties as to the application for stay were continuing after that date and up till the day before the hearing of the stay application. This is evident from the letters that are Exhibits 2 and 3. From this correspondence it would appear the matter was resolved between the parties only one day prior to the hearing.

[19] The result was that on the morning of the hearing, Mr Morris on behalf of the appellants announced that the appellants were withdrawing the stay application. The stay application was dismissed.

[20] The actions of the appellants have not been shown to be unreasonable and I do not consider there to be any reason to depart from the normal rule on interlocutory applications, that there be no order as to costs.

[21] Accordingly, the order on the application for a stay of execution of the judgment is that there be no order as to costs.

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