HILL v GRAND UNITED FRIENDLY SOCIETY AND ANOR [1997] NSWCA 149

HILL v GRAND UNITED FRIENDLY SOCIETY AND ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER JA 11 August 1997

[1997] NSWCA 149 Sheller JA

Motion

This is an application by Notice of Motion for the following order:

"1. That execution of and proceedings in elation to the orders and judgment of Justice Windeyer of 28 November 1996 and 10 December 1996 be stayed pending the determination of this appeal.

2. That execution of and proceedings in relation to the order for costs made by Justice Young in proceedings No 2675 of 1992 be stayed pending the determination of this appeal.

3. That the hearing of this appeal be expedited.

4. Such further orders as the court deems fit."

The Notice of Motion was filed in CA40802/96. The claimant is the appellant, David Hamilton Hill. The opponents are the respondents, Grand United Friendly Society and Rodney Kivell Downing.

The appeal is from a decision of his Honour Mr Justice Windeyer given on 28 November 1996 and 10 December 1996 in matter number ED4946/91. The opponents do not oppose the making of an order in terms of Order I sought and I need say no more about this.

The application is supported by an affidavit of Mr Hill sworn on 2 May 1997. No objection was taken by the opponents to any part of this affidavit. I am informed, however, that it had been intended to cross-examine Mr Hill on his affidavit. It is accepted that Mr Hill, as a result of a recent serious heart operation, is unable to attend today for cross-examination.

The second order, which is a matter of contest, relates to an order for costs made by Young J in different proceedings, namely 2675/92. Understandably, a question was raised before me as to the power of this Court to make such an order in proceedings not before the Court by way of appeal.

Mr Bannon SC drew my attention to a number of authorities which touch upon this question of power, notably the decision of Isaacs J in Hutchinson v Nominal Defendant [1972] 1 NSWLR 443, and a decision of Kirby P, when President of this Court, in Ferris v Plaister [No 2] of 30 September 1994 to be found in Butterworths Unreported Judgments of 1996.

In my view, this question of power can be overcome in the present case by requiring the claimant to file in this Court a Notice of Motion in matter number 2675/92 seeking the relief sought in O2 of the Notice of Motion before me. That Notice of Motion can be made returnable instanter and I will proceed on the basis that it is currently before me.

The reason why I am satisfied that that is an appropriate procedure is that the parties in that matter are parties before me, and that up to this point on this Notice of Motion, which first came before the Registrar in May 1997, this point, which

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was a technical one, does not seem to have been ventilated. I think it can be effectively overcome in the way I have suggested.

On the merits of the matter, my mind has fluctuated. I have had the benefit of the submissions of Mr Bannon SC for the claimant, and Mr Neil QC with Mr Maston for the opponents. The various matters for and against the granting of the stay sought have been fully ventilated.

The authorities on whether or not a stay should be granted are well known. I refer in particular to the decision of this Court in Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) [1985] 2 NSWLR 685, particularly at 693 and following. It is not for me to speculate upon the likely outcome of the appeal.

The stay application was originally made to Windeyer J. He granted a temporary stay on 23 April 1997. In the course of his reasons for judgment, he said that he thought it proper to state that the appeal could not be considered to be entirely without merit, it appearing that the strongest appeal point would be against the finding that:

"Whether or not Mr Hill had been properly advised on the question of capitalisation of interest, he would have proceeded with his venture in any event".

Mr Neil has quite properly invited my attention to a number of passages in the reasons for judgment on the claim itself of 28 November 1996, in which Windeyer J stated that on a number of matters he did not accept Mr Hill's evidence. However, it appears that these credit findings do not relate to the particular point of appeal to which his Honour referred in the later judgment which, as I understand it, is the substance of the claimant's appeal before this Court.

Mr Neil pointed out that the evidence in Mr Hill's supporting affidavit relating to his financial position was somewhat sparse. Mr Hill said that he did not have any funds to pay either of the judgments, that is to say, the costs judgment relating to Young J's judgment and the judgment of Windeyer J, which required payment to be made of an amount of nearly two million dollars. He said he owned no assets except personal clothing, he had no income other than the Social Security Age Pension, and he had no employment or occupation for financial gain. In particular, he said:

"12. T have no funds available to me other than funds made available by my children and my wife for her and my sustenance and for meeting the expenses of the appeal.

13. My wife receives a partial Department of Social Security Age Pension. She is employed by the University of Sydney for 17.5 hours per week.

14. I did not have and do not have the funds to pay my Counsel and solicitor for the work they did in respect of the hearing before Justice Windeyer or in respect of the appeal and I will not have any such funds unless I am successful in the appeal.

15. If I am made bankrupt there are no funds in my estate which the Trustee in Bankruptcy can prosecute the appeal.

16. I have no other liabilities other than those flowing from the said orders."

The opponent Society has on numerous occasions since the certificate of taxation issued on 29 October 1993 by letter sought payment of the costs so certified. The amount, including interest I am informed, is now of the order of $30,000. It appears from that correspondence that no payment was proffered and

URJ HILL v GRAND UNITED FRIENDLY SOCIETY AND ANOR (Sheller JA) 3

no satisfactory explanation for non-payment given beyond the, I suppose, fairly obvious one, that Mr Hill was not in a position to make payment.

The two sets of proceedings are separate, but both relate to the same property in Darling Point. The proceedings before Young J, which commenced on 10 March 1992, were by the opponent Society for possession of that property. Various defences were raised to that claim, but not made out to the satisfaction of Young J. Accordingly, an order for possession was made and I am informed that the property has now been sold. However, the proceeds of sale were nothing like sufficient to satisfy the amount owing to the Society under the loan arrangement which was secured by the mortgage, which in turn gave rise to the claim for possession.

The present proceedings were taken earlier on 26 September 1991. The matters in respect of which claim was made by the claimant seem not dissimilar from the matters that were unsuccessfully raised by the defence to the proceedings for possession. However, Windeyer J was satisfied that no Anshun point arose, and that conclusion has not been challenged.

All in all, it seems to me that the proceedings were intertwined one with another. Any doubts that I may have had about Mr Hill's evidence as to his financial position, which were quite fairly and properly ventilated by Mr Neil, are, I think, set at rest by what Windeyer J said in his judgment on 23 April 1997. He said:

"The reason that an application for a stay is made in this matter is that it is perfectly clear that if no stay is granted, Mr Hill will ultimately be made bankrupt and it is at least unlikely that the Trustee in Bankruptcy would be prepared to prosecute the appeal. It is only if Mr Hill succeeds in this appeal that he can be put back into any substantial financial position and a limited stay for twenty-eight days is not opposed on the basis that would give the appellant an opportunity to apply for an expedited hearing."

On that basis his Honour granted such a stay. He said:

"T should add that the defendant/respondent to the appeal in consenting to these orders, does not by doing so, accept that I have power to stay action on the judgment for costs given by Mr Justice Young in proceeding 2675/92 but nevertheless is content to have the question of a stay on that judgment determined by the Court of Appeal."

There is some evidence which suggests that Mr Hill's health has been gravely affected by the continuance of these proceedings, and I am satisfied that it will continue to be so affected the longer this appeal procedure continues.

I am persuaded that this is a case in which the hearing of the appeal should be expedited and I propose to so order. I am alive to the unsatisfactory situation in which the first opponent finds itself. It has succeeded all along the line in these proceedings. It has had its costs in the proceedings before Young J taxed and has not been paid them since they were taxed, which is for a period of four years or thereabouts.

As I say, my mind has fluctuated about what should be done on this application. However, I am satisfied that this is an appropriate case for the granting of the stay that is sought. Accordingly, the following orders will be made.

1. The claimant is to file and serve a Notice of Motion in matter 2675/92 seeking an order to the effect of that sought in O2 of the Notice of Motion before me. That Notice of Motion is to be filed before 4pm on 12 August 1997.

2. I make O1, O2 and O3 in the Notice of Motion.

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3. The costs of this application shall be costs in the appeal.

In the circumstances of this case and bearing in mind particularly the part that counsel have played in a long hearing before Windeyer J, and also the impecuniosity of Mr Hill, that if possible the date fixed for hearing should be one

5 on which counsel would be available.

1. The claimant is to file and serve a Notice of Motion in matter 2675/92 seeking an order to the effect of that sought in O2 of the Notice of Motion before me. That Notice of Motion is to be filed before 4pm on 10 12 August 1997. 2. I make O1, O2 and O3 in the Notice of Motion. The costs of this application shall be costs in the appeal.

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