Court of Appeal (Qld)|2001-10-05|Before: Williams JA

The applicant puts forward its case on a number of bases. Firstly it said that there is a fear that the award of damages would be dissipated if fully paid before the hearing of the appeal, and, if the appeal was successful to any extent, then there would be little or no chance of recovery. It was also said that, in the circumstances, there are strong prospects of success on the hearing of the appeal.

I should say that the applicant has always conceded that some amount should be paid and prior to bringing this application an offer was made to the solicitors for the respondent which involved a number of alternative propositions, including payment of part of the amount immediately or payment of the whole of the amount provided it was held in trust until the hearing of the appeal. Those offers were rejected, hence the contested hearing today.

The contention of the appellant is that in those circumstances the respondent has in the past demonstrated an inability to manage his affairs and if given the full amount of the judgment it may well be dissipated before the hearing of the appeal.

The respondent says in his affidavit that he would probably bank some of the moneys or may use them to purchase a house. That in itself raises a concern because if the whole of the judgment was tied up in a house and the applicant was at all successful there may be difficulty in getting repayment within a reasonable time.

Having regard to the judgment appealed from it does seem to me it is not surprising that there is an appeal, particularly given the findings made with respect to the respondent's injury to the right wrist. That has to be balanced against the basic premise that the respondent is entitled to the fruits of the judgment he currently has.

I am of the view that it is appropriate in the circumstances that I have outlined to stay the judgment in part and I am of the view that the applicant should pay forthwith to the respondent $100,000. Payment of the balance should be stayed. The balance would, of course, continue to attract interest which I understand would be at the current rate of 9.5 per cent.

HIS HONOUR: The order will require payment of $100,000 immediately, a stay on the balance, and I would also make that order on condition that the appellants prosecute the appeal promptly.

HIS HONOUR: The costs of and incidental to the notice of motion are to be costs of the appeal.

Colefax v Piggins & Anor [2001] QCA 427 (5 October 2001)

Colefax v Piggins & Anor [2001] QCA 427

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Judgment (9 paragraphs)

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Cases Cited (1)

Colefax v Piggins & Anor [2001] QCA 427 (5 October 2001)