Higgins v Pretorius

1. On 28 February 2025 judgment was delivered in an action for damages for personal injuries sustained by the Plaintiff after having been struck on the head with a mallet by her neighbour, the Defendant. The proceedings were conducted as an assessment of damages, the liability was admitted.

2. Verdict for the Plaintiff in the sum of $1,090,003.04 was entered on 7 April 2025.

3. The Defendant is uninsured and thus the burden of the judgment sum falls on her to meet from her own resources.

4. On 28 March 2025 the Defendant filed a Notice of Appeal against the judgment.

5. On 28 April 2025, the Defendant (the Applicant) by application sought a stay of the judgment pending the hearing and resolution of the appeal.

The Applicant's Evidence

6. The evidence on the stay comprised an affidavit of the Applicant on which she was cross-examined.

7. The Applicant deposed to her financial circumstances which are that she is a joint owner with her husband of the property in which she lives and which is subject to a mortgage; she has minimal savings and a credit card debt. The Applicant is employed and earns $134,865 gross per annum. She also deposes to being liable for medical expenses for spinal surgery conducted in Thailand, although it was not at all clear whether those costs have already been paid.

8. The Applicant further asserts that given the poor relationship between her and the Plaintiff (the Respondent), she believes that if she paid the judgment sum or part of it in satisfaction of the judgment, she may not be able to recover it from the Respondent if her appeal was successful.

9. In short, it is the Applicant’s evidence that she cannot presently pay the judgment sum and said that she would need to obtain financial advice about how to pay the sum. She has not yet taken any advice.

10. She continued: The terms of financial advice and how I go about paying the judgment against me would likely be dependent on the outcome of the appeal. I believe it would be adverse to my interest for payment of any damages to be made until the Appeal has been determined and orders made confirming the value of the damages so that I can take proper steps to manage the amount owed.

11. The Applicant said that if she was ordered to pay the judgment sum or a significant part of that sum immediately it would “significantly affect my ability to pay the legal fees associated to pursue the appeal”.

12. The Applicant said that since the delivery of the judgment, she had paid significant sums of money to her lawyers and, it seems, continues to make payments to her lawyers, presumably in anticipation of the costs of prosecuting the appeal.

13. The Applicant agreed that in closing argument, counsel then appearing for her submitted that a proper verdict to meet the Respondent’s injury, loss and damage was in the order of $270,000, but said that she had made no enquiries nor sought any advice as to how she might, at least, pay that amount if ordered to do so.

14. The Respondent contended that if a stay is granted, that sum having been conceded by the Applicant’s counsel as being a proper verdict, should be subject to an order for immediate payment.

Principles

15. The principles governing this application are well established. However, before turning to them and their application in this case, it is useful to recall that the hearing of the matter was only as to the assessment of damages, and whether or not the Applicant’s appeal is successful, it seems to me to be inevitable that she will have to pay damages to the Respondent.

16. It must also be borne in mind that the entry of judgment in favour of the Respondent created an immediate right to seek payment of the verdict amount. That right persists until there is a stay, which of course is temporary. It is not, as the Applicant’s affidavit seems to suggest, a matter of not paying the ordered sum because it is financially difficult and/or in the hope that an appeal might reduce the liability.

17. An application for a stay in these circumstances is governed by r 5301 of the Court Procedures Rules 2006 (ACT). It provides relevantly that an appeal to the Court of Appeal in a civil proceeding does not operate as a stay of the order appealed from unless either the Court of Appeal or the Court otherwise orders.

18. In Alananzeh v Zgool Form Pty Ltd (No 2) [2024] ACTSC 258, McWilliam J conveniently set out the relevant principles which I adopt here. Her Honour referred to Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd [2024] NSWCA 128 at [5], in which it was said by the Court: The principles governing the grant of a stay pending an appeal are well-settled, as the parties on this application agreed. They are analogous to those which govern the grant of interlocutory relief before trial: Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 at 694-5, Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383 at [18]. A party applying for a stay must show, first, that the appeal raises serious issues for determination by the appellate court; and secondly, that there is a real risk that the appellant will suffer prejudice or damage if the stay is not granted. If an appellant prevails on those two questions, then the Court is to consider the balance of convenience and the competing rights of the parties: Pamplin v Irwin [2024] NSWCA 112 at [11] per Leeming JA.

19. Her Honour also referred to the case of Dreamtime Supply Company Pty Ltd v Steadfast ICT Security [2021] ACTCA 38 at [8], in which the Court referred to the well-known principles articulated in Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685, at 694-695: It is sufficient that the applicant ... demonstrates a reason or appropriate case to warrant the exercise of discretion in his favour ...The Court has a discretion whether or not to grant the stay and, if so, as to the terms that would be fair. In the exercise of its discretion the Court will weigh considerations such as the balance of convenience and the competing rights of the parties ... Two further principles may be mentioned. The first is that where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay ... where it is apparent that unless a stay is granted an appeal will be rendered nugatory this will be a substantial factor in favour of the grant of a stay”.

20. In Hendricks v El Dik (No 5) [2016] ACTSC 302 (Hendricks) Mossop AsJ (as his Honour then was) stated at [11]: The test for the granting of a stay is articulated in the decision in Cambridge Credit and has been adopted in this jurisdiction in Davey v Herbst [2011] ACTCA 27 where (at [12]) Burns J summarised the principles as follows: I take from these authorities the following principles: (a) in order to grant a stay it is not necessary for the applicant to demonstrate special or exceptional circumstances; (b) in order to justify the court exercising its discretion to grant a stay, the applicant must demonstrate some reason or appropriate case that warrants the exercise of the discretion; (c) such a reason would include the applicant's prospects of success on the appeal, and the likelihood of the applicant suffering irremediable prejudice if the stay is not granted; (d) in determining whether to grant a stay, the competing right of the parties and the balance of convenience must be weighed.

21. It is against these well accepted principles that I turn to consider the application.

Does the appeal raise serious issues to be determined?

22. In considering this issue, Mossop AsJ said in Hendricks at [14]: In terms of assessing the prospects of the appeal, it is not appropriate to attempt anything more than the most bare-bones assessment. I accept that in relation to questions of breach and causation the defendants have an arguable case on appeal. It appears to me that the stronger of the arguments when one looks at the appeal as a whole is in relation to contributory negligence, because inevitably that is a matter upon which reasonable minds might differ where the overall characterisation of, and emphasis upon, a number of different factors can lead to different conclusions.

23. Given that the proceedings involved only the assessment of damages, liability having been admitted, the challenges sought to be advanced on appeal are directed to the amounts awarded on the various heads of damage. It is contended that the amount awarded for general damages is excessive. Further it is to be contended that the award of aggravated damages was made in error either because it was unnecessary because the Respondent was properly compensated through the award of general damages or, in the alternative, that the amount ordered was excessive. The appeal also challenges the awarding of damages for past and future economic loss and other compensatory damages. In short, the appeal challenges the findings on all aspects of the damages awarded.

24. Attempting to make a “bare bones” assessment of the arguments sought to be advanced as to the assessment of damages, there may be an arguable issue to develop in the Court of Appeal.

Is there a real risk that the appellant will suffer prejudice or damage if the stay is not granted?

25. As I have indicated, the basis of the stay is that the Applicant does not wish to pay the verdict sum until her appeal has been heard, in the hope that the appellate court will reduce the damages. Further, the Applicant argues that even if she did pay the verdict amount to the Respondent, because of their poor relationship, the Respondent would not repay the verdict amount in the event that it was reduced on appeal. There is no doubt that the Applicant and the Respondent do not enjoy a good relationship. I am not persuaded that if a sum was paid to the Respondent it would not be recovered if necessary. It was apparent from the hearing of the primary proceedings that the Respondent is not without means to repay any judgment sum paid, and, of course orders could be made for payment with terms which would preserve the sum pending appeal.

26. It was further argued for the Applicant that if she is called upon to pay the judgment sum or any part of it, it would impede her ability to fund the costs of her appeal and, further it was argued that she has costs and expenses to meet in her everyday life which would be affected if she was to be called upon to pay the judgment sum immediately.

27. While it seems that the Applicant will have to pay damages to the Respondent, the amount of the verdict amount ultimately ordered to be paid may allow for different means by which the Applicant can raise the necessary funds. It is difficult to make an assessment of this issue since the Applicant has not apparently taken any advice nor any step to garner funds to pay any judgment sum. It may be that there are avenues of paying the verdict sum (whatever that might ultimately be) to the Respondent which fall short of liquidating assets, and if a stay is not granted, the Applicant may suffer prejudice in not having all payment options available to her.

Balancing of rights and interests

28. The Application as filed sought that the stay be granted unconditionally. On the evidence before the Court, the principal source from which the verdict amount, whatever that might be, can be met is the home in which the Applicant lives, and which is owned jointly with her husband.

29. During the hearing it was suggested that a stay granted without conditions leaves open the possibility that the Applicant could, by dealing with her interests in the property or in other assets, alter her financial position to the ultimate detriment of the Respondent’s right to the verdict in whatever amount is eventually ordered to be paid.

30. After consideration, the Applicant proffered orders. Those orders were: (1) The [Applicant] consents to the lodgement of a caveat against the property at 1 Peken Place, Nicholls on condition: (a) The [Respondent] withdraws the caveat once the judgment debt is settled or discharged. (b) The [Respondent] consents to the registration of a mortgage or finance instrument over the property where such mortgage or financial instrument is being lodged for the purpose of paying the debt to the [Respondent]. (2) The [Applicant] pay to the [Respondent]: (a) $8,300 within 28 days of orders being filed; and (b) $500 per fortnight thereafter, until the hearing of the appeal.

31. Given that these proposed conditions had not been suggested before the hearing, the Respondent, not unreasonably sought time in which to consider the conditions and to formulate other conditions.

32. The Respondent’s suggested conditions were: 1. Order that: a. subject to Order 2; b. subject to the [Applicant’s] compliance with Orders 5 - 7 inclusive; and c. pending further order of the Court, execution by the [Respondent] on the judgment debt determined in these proceedings on 7 April 2025 (“the Judgment Debt”) be stayed until 30 days after delivery of judgment in the [Applicant’s] appeal to the Court of Appeal. 2. Direct that Order 1 does not include the sum of $270,986.62, being the amount of damages contended for by the [Applicant] at trial, plus post judgment interest accruing from 28 February 2025, and the [Respondent’s] legal costs as agreed or assessed. 3. Notes that the [Respondent] is at liberty to takes steps to execute judgment to the extent of $270,986.62, plus post judgment interest, forthwith. 4. Notes that Order 1 is made by the Court in reliance on the evidence of the [Applicant] in support of her Application in proceeding, including her Affidavit sworn on 28 April 2025 and her evidence in Court on 16 May 2025 and that such evidence constitutes a complete and accurate disclosure of the financial circumstances of the [Applicant]. 5. Order, as a condition of Order 1, that the [Applicant] forthwith charge all of her right, title and interest in the land and improvements situated at 1 Peken Place Nicholls in the Australian Capital Territory being Section 123 on Block 33 on Deposited Plan 9663 and being Volume 1601 Folio 39 (“Peken Place”). 6. Order that the [Applicant], at the request of the [Respondent], is to sign all documents and do all things necessary to register a caveat over Peken Place to support a charge over Peken Place for the Judgment Debt. 7. Order, until the full amount of the Judgment Debt or such other sum as determined by the Court of Appeal is paid to the [Respondent], that the [Applicant]: a. must actively pursue and prosecute her appeal to the Court of Appeal and not default in any order or direction and must seek to obtain the earliest available hearing date for her appeal; b. is not to take any action to transfer, deal with, or further encumber her interest in Peken Place; c. must continue to service any mortgage over Peken Place; d. must not borrow or take any action which would reduce her nett assets unless entering into a loan to repay the Judgment Debt to the plaintiff, being a loan which has been subject to the prior written consent of the plaintiff; and e. must not commit an act of bankruptcy or enter into any form of scheme of arrangements with her creditors. 8. Note that Order 1 shall cease to apply if the defendant does not comply with these orders. 9. Liberty is granted to the parties to apply on 3 days’ notice.

33. Having been served with the Respondent’s proposed orders, the Applicant filed a further submission challenging each proposed order and submitting that the orders proposed by the Applicant are “an appropriate balance between the competing rights of the parties. Any further conditions would significantly prejudice the [Applicant] [sic]”.

34. The Applicant submitted in answer to the proposed orders that: (a) The Proposed Orders go far beyond what is reasonable in the circumstances. (b) The Proposed Orders are unduly burdensome and onerous on the [Applicant]. (c) The Proposed Orders are designed to control and dominate the [Applicant] rather than constitute a reasonable protection of the [Respondent]’s interests while the judgment is stayed. (d) The Proposed Orders make provision only for satisfaction of the judgment debt ignore the fact the [Respondent] has other living expenses and severely restrict the [Applicant’s] ability to manage her financial affairs. (e) The Proposed Orders make no room for the possibility that the [Applicant’s] situation could unexpectedly change in the future.

35. The submissions continue and deal with each condition proposed by the Respondent and I will return to them later in these reasons.

Discussion

36. The conditions attending any order to stay the proceedings must ensure that the Applicant does not alter or permit anyone else to alter her financial position to the Respondent’s detriment.

Immediate payment of $270,000 plus interest plus costs

37. I do not propose to order that the Applicant immediately pay $270,986.62 to the Respondent because it may be that on appeal, if successful, the damages awarded may be reduced below that which the Applicant’s counsel said were appropriate to meet the Respondent’s injury, loss and damage. Further there was no evidence that the Applicant could immediately secure that sum. In coming to that view, I take into account that the Applicant has not taken any steps to see how she can meet the judgment sum. However, if it transpires that the Applicant can secure the judgment sum only by selling her house, given that the Applicant informed the Court that the appeal may be heard later this year, in the time it took to sell the property, the appeal may well have been determined.

38. Overall, I am of the view it would not be fair in the balancing of convenience for the Applicant to be forced to do so on an interim basis. Thus, the Respondent’s proposed orders 2 and 3 fall away. A caveat over the property

39. The Respondent’s proposed orders that the Applicant provide the Respondent with an interest sufficient to support a caveat over the property in which the Applicant lives is broadly similar to the Applicant’s proposal.

40. However, the submissions in reply filed by the Applicant assert that to create by charge gives rise to an “immediately exercisable legal interest right equivalent to the entire judgment sum … in the [Applicant’s] property. …” and it would entirely negate the purpose of the stay and “in any event far exceeds the stay amount proposed by the [Respondent] at proposed order 2.”

41. A number of issues arise from this submission. First, it was not the Respondent’s proposal that the “cost of the stay” was $270,000, but rather it was to be a sum paid in part satisfaction of the ultimate verdict amount. Secondly, the giving of a charge to the Respondent equivalent to the whole of the judgment sum so as to support the lodging by the Respondent of a caveat on the property title will have the effect of protecting her present right to the whole of the judgment sum should the Applicant seek to alter her financial position by dealing with that property. It does not “negate the purpose of the stay”. The charge is an equitable charge and does not convey or assign any legal title in the property but gives the Respondent a caveatable interest.

42. I propose to order, as a condition of staying judgment pending appeal, to require the Applicant to give a charge to the Respondent in the amount of the whole of the verdict sum over the property in which she lives so as to entitle the Respondent to lodge a caveat against the title of that property.

43. The Respondent’s proposed orders which require the Applicant to prosecute the appeal with due diligence, which is an entirely usual order, is one I propose to make.

44. Given that the Applicant seeks an indulgence of the Court, I propose to order that she pay the costs of this Application.

Orders

45. For those reasons, the following orders are made: (1) Pending further order of the Court of Appeal: (a) Stay the operation of the judgment entered on 7 April 2025 on condition that the Applicant forthwith give a charge over all her right, title and interest in the land and improvements situated at 1 Peken Place Nicholls in the Australian Capital Territory, being Section 123 on Block 33 on Deposited Plan 9663 and being Volume 1601 Folio 39 (“Peken Place”) in favour of the Respondent in the sum of $1,090,003.04. (b) The Applicant, at the request of the Respondent, is to sign all documents and do all things necessary to allow the registration of a caveat over Peken Place to support the charge over Peken Place for the Judgment sum. (c) The Applicant is not to take any action to transfer, deal with, or further encumber her interest in Peken Place. (d) The Respondent will withdraw the caveat once the judgment debt is settled or discharged. (e) The Respondent consents to the registration of a mortgage or financial instrument over the property where such mortgage or financial instrument is being lodged for the purpose of paying the debt to the Respondent. (2) The Applicant must actively pursue and prosecute her appeal to the Court of Appeal. (3) Liberty to either party to restore the matter to the list on the giving of 3 day’s notice. (4) The Applicant is to pay the costs of and incidental to this application. Payment of those costs is deferred pending the completion of the appeal proceedings.

I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Ainslie-Wallace. Associate: Date: 12 June 2025