George v Biggs & Anor (No 2) [2015] NSWDC 43

George v Biggs & Anor (No 2) [2015] NSWDC 43

The interim stay was extended only until 4.00pm on 25 May 2015 because the defendants had filed a notice of intention to appeal but had not yet identified grounds of appeal, while the plaintiff's financial circumstances created a risk of non-recovery if the judgment sum were paid and an appeal later succeeded. The defendants were required to pay Professor Havas' subpoena compliance expenses because UCPR r 33.11 and the Civil Procedure Act 2005 empowered the Court to order payment of reasonable loss or expense incurred in complying with the defendants' subpoena; no separate application by Professor Havas was necessary in the circumstances; the claim was not part of the plaintiff's assessed...

Jurisdiction
Australia
Judgment Date
17 April 2015
Procedural Posture
Civil Professional Negligence Proceedings; Procedural and Other Rulings / Post Judgment Applications for Extension of Interim Stay Pending Appeal and for Payment of Expert Witness Expenses
Outcome
Interim stay extended to 4.00pm on Monday 25 May 2015 pending any further order of the Court of Appeal if a notice of appeal is filed; plaintiff's motion for payment of Professor Havas' witness expenses granted; defendants ordered to pay the plaintiff's motion costs on the ordinary basis unless otherwise ordered.
Legal Topics
['stay Pending Appeal' 'subpoena Compliance Expenses' 'expert Witness Expenses' 'costs on Ordinary Basis']
['civil Procedure' 'costs' 'evidence'] ['stay Pending Appeal' 'subpoena Compliance Expenses' 'expert Witness Expenses' 'costs on Ordinary Basis']

Case Brief

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Procedural Posture

Civil Professional Negligence Proceedings; Procedural and Other Rulings / Post Judgment Applications for Extension of Interim Stay Pending Appeal and for Payment of Expert Witness Expenses

Legal Issues

  1. 1 ['Whether the interim stay of the judgment entered for the plaintiff should be extended pending the filing of any notice of appeal.' 'Whether the defendants, as the issuing party for a subpoena requiring Professor Havas to attend trial for cross-examination, should pay his claimed witness expenses.' "Whether the plaintiff had standing to bring the application concerning Professor Havas' expenses, or whether Professor Havas had to file a separate application." "Whether the claim for Professor Havas' expenses was properly characterised as a claim for a specified gross sum instead of assessed costs." "Whether Professor Havas' claimed expenses were reasonable in circumstances where his professional commitments were cancelled or rescheduled."]

Ratio Decidendi

The interim stay was extended only until 4.00pm on 25 May 2015 because the defendants had filed a notice of intention to appeal but had not yet identified grounds of appeal, while the plaintiff's financial circumstances created a risk of non-recovery if the judgment sum were paid and an appeal later succeeded. The defendants were required to pay Professor Havas' subpoena compliance expenses because UCPR r 33.11 and the Civil Procedure Act 2005 empowered the Court to order payment of reasonable loss or expense incurred in complying with the defendants' subpoena; no separate application by Professor Havas was necessary in the circumstances; the claim was not part of the plaintiff's assessed...

Court Disposition

Interim stay extended to 4.00pm on Monday 25 May 2015 pending any further order of the Court of Appeal if a notice of appeal is filed; plaintiff's motion for payment of Professor Havas' witness expenses granted; defendants ordered to pay the plaintiff's motion costs on the ordinary basis unless otherwise ordered.

Orders

  • ['The interim stay previously ordered to expire at 4.00pm on 2 April 2015 is extended to 4.00pm on Monday 25 May 2015 pending any further order of the Court of Appeal in the event that a notice of appeal is filed.' 'In the event that no notice of appeal is filed before 25 May 2015, the stay the subject of Order 1...