Lewincamp v ACP Magazines Limited (No 3) [2008] ACTSC 81 (2 September 2008)

Last Updated: 15 September 2008

LEWINCAMP v ACP MAGAZINES LIMITED (NO 3)

[2008] ACTSC 81 (2 SEPTEMBER 2008)

PROCEDURE – stay of orders – judgment sum and costs – not necessary to show special or exceptional circumstances for stay to be granted – reason to warrant exercise of discretion sufficient – plaintiff’s resources to repay – plaintiff’s and plaintiff’s legal representatives’ undertakings to Court

Held: application for stay dismissed – no sound reason for stay identified.

Court Procedures Rules 2006 (ACT) r 5301

Alexander v Cambridge Credit Corporation Ltd (Receivers appointed) (1985) 2 NSWLR 685

Barrington Tops Developments Pty Ltd v Low [2008] NSWSC 859

Park v Brothers [2003] NSWSC 1054

No. SC 578 of 2004

Judge: Besanko J

Supreme Court of the ACT

Date: 2 September 2008

IN THE SUPREME COURT OF THE )

) No. SC 578 of 2004

AUSTRALIAN CAPITAL TERRITORY )

FRANK LEWINCAMP

ACP MAGAZINES LIMITED

ORDER

Judge: Besanko J

Date: 2 September 2008

Place: Adelaide (via videolink with Canberra)

THE COURT ORDERS THAT:

1. The application for a stay of judgment be dismissed.

2. The defendant pay the plaintiff’s costs of the application for a stay.

BESANKO J:

1. This is an application by the defendant for a stay of orders I made on 23 July 2008 and 13 August 2008, respectively. On 23 July 2008 I ordered that there be judgment for the plaintiff against the defendant in the sum of $375,000. On 13 August 2008 I made orders (relevantly):

1. The defendant pay to the plaintiff interest on the damages awarded to the plaintiff fixed in the sum of $47,866.44.
2. The defendant pay to the plaintiff his costs of action assessed on the following basis:

(1) a party and party basis up to and including 12 June 2007;

(2) an indemnity basis from 12 June 2007 up to but excluding the application for these orders; and

(3) a party and party basis in relation to the application for these orders.

2. In addition to its application for orders, the defendant filed and served an affidavit of a solicitor which annexed its notice of appeal. The notice of appeal contains 13 grounds of appeal. The defendant made written submissions, and supplemented those submissions with oral submissions.

3. The plaintiff relied on two affidavits, one of the plaintiff and the other of his solicitor. The plaintiff’s affidavit establishes that he has the resources to repay the judgment if, as a result of a successful appeal by the defendant, he is required to do so. In his affidavit, the plaintiff undertakes to the Court to pay any part of the judgment sum which is not paid to his lawyers into a mortgage offset account which he can draw down on demand to repay the judgment moneys if required to do so.

4. The plaintiff has signed and will file an undertaking to the Court to repay the judgment moneys upon an order of the Court, and his senior and junior counsel have each signed undertakings to the Court to repay to the defendant the part of the judgment moneys received by them upon an order of the Court. The plaintiff’s solicitors have undertaken to the Court to repay to the defendant within seven days of an order of the Court all moneys paid to his firm from the judgment moneys, or if part only must be repaid, that proportion of the moneys paid to this firm from the judgment moneys.

5. On 2 September 2008 I refused the defendant’s application for a stay, and I ordered that the defendant pay the plaintiff’s costs of the application. I indicated that I would publish reasons for my decision, and these are my reasons.

6. The relevant rule of court is r 5301 of the Court Procedures Rules 2006 (ACT) and that rule provides (relevantly):

(1) An appeal to the Court of Appeal in a civil proceeding does not operate as a stay of the order appealed from unless—

(a) a territory law provides otherwise; or

Note A territory law includes these rules (see Legislation Act, s 98).

(b) the Court of Appeal or the court otherwise orders.

Note Pt 6.2 (Applications in proceedings) applies to an application for a stay or for an order under this rule.

7. In Alexander v Cambridge Credit Corporation Ltd (Receivers appointed) (1985) 2 NSWLR 685 the Court of Appeal of New South Wales said that it was not necessary for an applicant for a stay to show special or exceptional circumstances. It is sufficient if the applicant demonstrates a reason or an appropriate case to warrant the exercise of discretion in his or her favour. That approach has been adopted in subsequent cases in New South Wales (see Park v Brothers [2003] NSWSC 1054; Barrington Tops Developments Pty Ltd v Low [2008] NSWSC 859). It is not suggested by either party that that approach is not the appropriate approach in this jurisdiction.

8. The plaintiff accepted that there were grounds of appeal which were arguable and I proceed on the assumption that there are some prospects of the appeal being successful. The defendant made it clear in its oral submissions that it was not putting its application on the basis that it will have difficulty recovering the moneys from the plaintiff if its appeal is successful. That is usually the basis upon which an application for a stay is made. Furthermore, it was not suggested by the defendant that the appeal will in any other way be rendered nugatory unless a stay is granted.

9. I do not think that the defendant has identified a sound reason for a stay. It sought to support its application for a stay by submitting that the grounds of appeal were strongly arguable, it was appropriate to maintain the status quo, there would be no hardship to the plaintiff and the appeal is likely to come on for hearing in the reasonably near future. It is not appropriate for me to weigh the strength of the grounds of appeal to any greater extent than I have already done, and in my opinion the other matters identified by the defendant, even when taken together, fall well short of supporting the grant of a stay.

10. It was for these reasons that I refused the defendant’s application.

11. I would add that the plaintiff submitted that if there was a stay he would suffer an adverse consequence in terms of his liability to taxation. That was a new matter which was not raised in his written submissions. The defendant said that if I was going to rely on the matter, it sought leave to make further submissions. I have not relied on the matter, and I was able to make a decision without having regard to it.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Besanko.

Associate:

Date: 2 September 2008

Solicitor for the plaintiff: Mr R Lucas of Colquhoun Murphy

Counsel for the defendant: Mr B McClintock SC with Mr M Richardson

Solicitor for the defendant: Johnson Winter & Slattery

Date of hearing: 2 September 2008

Date of judgment: 2 September 2008