Makeig v Tucun

KALYK: We seek costs but on an indemnity basis from 9 September 2008 and that your Honour is as a result of an offer of compromise in accordance with the court rules which was served upon the plaintiff on 8 September 2008. It's common ground between the parties that such an offer was made and I hand up an affidavit which I rely upon. I take your Honour--

SOMERVILLE: There's no dispute about the service of the notice.

KALYK: Yes we do. And we refer your Honour to paragraph 9 and the annexure A.

SOMERVILLE: Your Honour can I indicate that I really don't have any submissions to make in opposition.

HIS HONOUR: Yes. So what's the order that you seek Mr Kalyk?

KALYK: Plaintiff pay the defendant's costs, such costs are to be on an indemnity basis from and including 9 September 2008.

SOMERVILLE: I don't have any submissions to make on that your Honour.

I order the plaintiff to pay the defendants' costs, such costs to be assessed on an indemnity basis in accordance with R 42.15 of the Uniform Civil Procedure Rules 2005 from and including 9 September 2008. EXHIBIT "#COSTS 1" AFFIDAVIT OF MR HARRY PAPADOPOULOS TENDERED, ADMITTED WITHOUT OBJECTION

SOMERVILLE: Your Honour I am instructed to seek a stay conditional upon the filing of the notice of bill within 28 days.

KALYK: The effect of your Honour's decision is that the only matter left outstanding is costs. We'd be content if your Honour were to order that no bill of costs be served before the expiration of fourteen days from today. That will give my friend ample opportunity to make any application he wishes for appeal. At the moment your Honour has no reason before him which would justify the granting of the stay. And really what is a practical matter what will occur will be that it will take some time for any costs assessment to be--

HIS HONOUR: So what's the stay that you're seeking?

KALYK: Well the procedure for costs would be that the defendant would need to prepare a bill.

HIS HONOUR: I'll just stop you there. What is the stay that you are seeking? Stay of what? Because I've entered a judgment for the defendants.

HIS HONOUR: And I've ordered costs. So what are you seeking a stay of?

SOMERVILLE: The technical stay I'm seeking is that of a stay of the judgment but that will automatically stay the process for the assessment of costs.

SOMERVILLE: With respect your Honour has entered a judgment and if the judgment isn't stayed and there is an appeal it means that the way the Court of Appeal works these days with its timing there would be an assessment of costs and followed by enforcement prior to the matter being considered on appeal.

HIS HONOUR: I just wasn't sure whether you stay judgments as distinct from orders. I can understand you seeking stay of the order for costs.

SOMERVILLE: Perhaps the term should be order rather than judgment.

HIS HONOUR: Yes that's what's confusing me. You are seeking a stay of the judgment and without looking it up I'm not sure that that can happen. I can understand you seeking a stay of an order.

SOMERVILLE: I think that's more correct your Honour, a stay of the order.

HIS HONOUR: Yes, so you are seeking a stay of the order that your client pay the defendant's costs.

HIS HONOUR: And Mr Kalyk has made a proposal that I don't fully understand but you may have understood better than I do. Did you understand what his proposal was and what do you have to say about it?

SOMERVILLE: Well as I understand my friend is suggesting that the issue on appeal will be determined within the next 14 days in which case there is no need for a stay beyond 14 days. It's my understanding the procedure of the Court of Appeal that it takes way, way longer than that. That the normal procedure is and even to file a holding appeal notice and that's required within 28 days, one then has three months to file the proper notice of appeal once one has the transcript et cetera of the judgment. And then it takes at the moment the best part of a year to get an appeal on. So that my friend's suggestion of a 14 day stay with respect I don't think solves the issue. It just means we are going to be back here in 15 days asking the same thing.

KALYK: Your Honour prima facie the defendant's entitled to the benefit of your Honour's orders.

KALYK: My friend needs to put before your Honour a ground to displace that prima facie position.

KALYK: The only matter that's put is there might be a potential of appeal. We're prepared to concede that that's a possibility and we put to your Honour that within 14 days the plaintiff will be aware of whether it is making such application to appeal. If it is then it can make an application for a stay pending appeal. At the moment we're prepared to accept that we should not serve a bill of costs which would be the first step consequent upon your Honour's orders for 14 days.

HIS HONOUR: What you want to do is you say well look you make up your minds about whether you are going to appeal or not and when we see that you are going to appeal then make your application and it can be agitated at that stage.

HIS HONOUR: Will that be before me or before the Court of Appeal?

KALYK: That application can be made before your Honour or it can be made before the Court of Appeal.

HIS HONOUR: All right, and you are to facilitate that process offering not to serve a bill of costs for 14 days?

KALYK: That's so your Honour. And even when we serve the bill of costs the reality is that the plaintiff has a time within which to object to it and the assessment process itself takes three months. So there is no real probability of the plaintiff having to pay money in respect of the costs orders for three or four, maybe six months.

HIS HONOUR: That makes sense Mr Somerville. It just means you make up your mind as to whether you are going to appeal or not unless you are getting instructions.

SOMERVILLE: Well your Honour realistically - sorry your Honour.

HIS HONOUR: And then I was going to say but then by the sounds of it I don't know whether a stay on a costs order on the basis that there's going to be an appeal against a verdict for the defendant, judgment for the defendant, be something which is discretionary, that I may or may not grant. Perhaps I should ask Mr Kalyk. Is that assuming that they did appeal and put as a basis for their stay order that they were appealing, it's not an automatic stay is it?

KALYK: That's so your Honour. The appropriate course is for that to be done by way of notice of motion properly supported by evidence relied upon.

HIS HONOUR: Mr Somerville that's what I'm thinking, that it makes sense that you decide to get instructions about whether you are going to appeal or not and if you do and you lodge your notice of appeal and you have instructions or so for a apply which you then apply for the stay before me or the Court of Appeal supported by evidence as to whatever evidence is appropriate on a stay application regarding costs order. So tell me what you have to say about that?

SOMERVILLE: Well my concern is for the timing my friend referred to. Realistically we'd obviously need a transcript of your Honour's reasons.

SOMERVILLE: Subject to instructions I'm sure my client would want to have the benefit of counsel's advice.

SOMERVILLE: As I say the normal procedure is to lodge a short document as a holding appeal within 28 days and then to lodge a full notice of appeal within three months. And I'd respectfully submit that we will need that sort of time.

HIS HONOUR: What sort of time. So you are looking for a stay for what, three months?

HIS HONOUR: I mean effectively you are looking for a stay until your client makes a final decision which he would make after reviewing my reasons for judgment and getting advice.

HIS HONOUR: And that process could take up to three months?

SOMERVILLE: Yes your Honour. Most of it's taken up by waiting for the transcript.

HIS HONOUR: Yes, and the judge revising it, because a judgment like this is very substantial. And I do make a practice of appropriately revising judgments, not inappropriately but revising them and giving them paragraph numbers and tidying up the grammar and punctuation and stuff like that so it reads sensibly. And a judgment of this length it could take some time. Mr Kalyk I'm inclined to allow a bit more time, perhaps in the order of three months for that process.

KALYK: Your Honour in my submission it would be most unusual to allow three months in those circumstances. The rules require that any appeal or a holding appeal be filed within 28 days of today. So within that time the plaintiff must decide whether it's on the cards that it will appeal and in it's application, in it's notice of holding appeal please set out where it's coming to. At that stage the plaintiff is in a position to argue that those grounds that it discloses have sufficient prospects of success and there are other reasons, if applicable, as to why a stay should be granted. But in our submission a three month stay, and we are talking about the cost of this trial your Honour has exceeded all expectations. We are talking about a significant burden on the defendants whilst the plaintiff as it were tarries. And given the practical realities that--

HIS HONOUR: When does he have to file his holding appeal, within 28 days?

KALYK: It's required that the plaintiff appeal either by a notice of appeal or by lodging his notice of holding appeal within 28 days. In our submission that's the appropriate time or not later than that is the appropriate time that the plaintiff should make any application for stay pending appeal. It's with respect, inappropriate to give the plaintiff three months--

HIS HONOUR: So you say that really he has to make up his mind on what he's heard today in my reasons from the notes which have been taken and that's sufficient and he doesn't really need the revised transcript in order to work out whether there are grounds for appeal or not?

KALYK: That's so your Honour. Time runs as from today.

HIS HONOUR: All right. I'm thinking 28 days Mr Somerville.

SOMERVILLE: Your Honour can I suggest a middle course that any stay should be conditional upon filing a notice of appeal within 28 days. I think it is highly likely that at least a holding appeal document would be filed to save us having to come back here in 29 days. My suggestion is if it's conditional upon filing a notice of appeal within 28 days if we don't do it then my friend proceeds. If a notice of appeal, at least of a holding appeal is lodged then I would respectfully suggest that it is reasonable the defendant should have the three months to consider to file a full notice of appeal.

HIS HONOUR: But why? Why wouldn't he start considering it - so you mean the plaintiff, your client, have opportunity to consider? The three months you're saying he should have three months to consider whether he'll appeal or not. Why couldn't he start that process now from notes and--

SOMERVILLE: He should and will in my respectful submission at least file notice of appeal within 28 days. If he doesn't do that he shouldn't get the stay I agree. So the stay should be conditional upon filing a notice of appeal within 28 days. Thereafter the stay in my submission should be for three months and my suggestion is that your Honour orders a stay of the order for three months but conditionally upon filing a notice of appeal within 28 days otherwise we'll be back here on the twenty-ninth day.

HIS HONOUR: Mr Kalyk your position? He's asking the same thing.

KALYK: The usual course your Honour as my friend would say I have this basis for seeking a stay. That is we are appealing. That decision will be made within 28 days. On the twenty-eighth day my friend is in a position to put to your Honour the reason why he should be given a stay pending appeal. No further time is required. That matter should be argued before your Honour before the Court of Appeal at that time. Those are out submissions your Honour.

HIS HONOUR: I order a stay on the order of costs which I have made to be until 30 June 2009 provided in the meantime that the plaintiff files a notice of appeal.

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