Milich v The Council of the City of Canterbury (No. 4) [2012] NSWSC 1546

Milich v The Council of the City of Canterbury (No. 4) [2012] NSWSC 1546

A partial stay was appropriate because the proposed appeal involved a novel point with reasonable prospects that leave would be granted and was not obviously hopeless, and payment of the whole judgment sum was likely to create difficulties of recovery that could render the appeal nugatory. However, because the First Defendant would in any event remain liable for the Plaintiff's party/party costs up to 12 January 2011, its position could be protected by staying only $42,000 of the judgment sum and staying execution of the costs order made on 31 October 2012.

Jurisdiction
Australia
Judgment Date
12 December 2012
Procedural Posture
Interlocutory Application / First Defendant's Notice of Motion Seeking a Stay of Judgment Pending an Application for Leave to Appeal
Outcome
Partial stay granted; no order as to costs.
Legal Topics
['stay of Judgment' 'application for Leave to Appeal' 'offer of Compromise' 'indemnity Costs' 'set Off of Costs Order and Substantive Judgment' 'workers Compensation Payback']
['civil Procedure' 'costs' 'workers Compensation'] ['stay of Judgment' 'application for Leave to Appeal' 'offer of Compromise' 'indemnity Costs' 'set Off of Costs Order and Substantive Judgment' 'workers Compensation Payback']

Case Brief

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Procedural Posture

Interlocutory Application / First Defendant's Notice of Motion Seeking a Stay of Judgment Pending an Application for Leave to Appeal

Legal Issues

  1. 1 ['Whether the judgment sum payable by the First Defendant to the Plaintiff should be stayed pending an application for leave to appeal against the costs judgment.' 'Whether execution of the costs order made on 31 October 2012 should be stayed.' 'Whether a costs order in favour of the First Defendant, if obtained on appeal, could be set off against the substantive judgment sum.' 'What costs order should be made on the stay application.']

Ratio Decidendi

A partial stay was appropriate because the proposed appeal involved a novel point with reasonable prospects that leave would be granted and was not obviously hopeless, and payment of the whole judgment sum was likely to create difficulties of recovery that could render the appeal nugatory. However, because the First Defendant would in any event remain liable for the Plaintiff's party/party costs up to 12 January 2011, its position could be protected by staying only $42,000 of the judgment sum and staying execution of the costs order made on 31 October 2012.

Court Disposition

Partial stay granted; no order as to costs.

Orders

  • ['The judgment in favour of the Plaintiff is stayed to the extent of $42,000.' 'Execution by the Plaintiff of Order 2 made 31 October 2012 is stayed.' 'Orders (1) and (2) are subject to the condition that the First Defendant is to file the Summons seeking leave to appeal and the White Book by close of business...