Steve Marinos v Jane Mimigeannis

SACKVILLE AJA: By a notice of motion filed on 14 July 2016 the appellant seeks a stay of orders made by Bozic DCJ on 16 May 2016 pending determination of an appeal from his Honour’s decision. The application is made pursuant to Uniform Procedure Rules 2005 (NSW) r 51.44(1).

The respondent sued the appellant for injuries sustained in an assault committed by the appellant on 1 May 2010. At that time the respondent was living with the appellant in his apartment. There was no dispute at the trial that the respondent sustained significant injuries as a consequence of the assault. The primary Judge (as I shall describe his Honour) entered judgment for the respondent against the appellant in the sum of $338,122. [1]

The respondent did not commence proceedings against the appellant until 28 March 2015, more than four years and ten months after the assault. However, the primary Judge rejected the appellant’s defence founded on s 50C(1) of the Limitation Act 1969 (NSW) (Limitation Act), the effect of which is that a plaintiff must commence an action in assault within three years from “the date on which the cause of action is discoverable by the plaintiff”.

His Honour concluded that the cause of action was not discoverable by the respondent until 24 October 2014. His Honour reached this conclusion on the basis of the following findings: [2]

The primary Judge assessed damages for injuries sustained by the respondent in consequence of the assault at $338,122, made up as follows: [3]

The appellant’s notice of appeal contains the following grounds:

Mr McKenzie, who appeared for the appellant, submitted that a stay should be granted for four reasons:

The relevant principles on an application to stay orders pending an appeal were stated by Gleeson JA in Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd: [4]

To these observations, I would add that the Court considering a stay application is entitled to take into account its preliminary assessment of the strength of the appellant’s case. This consideration is protective of the position of a judgment creditor when it may be plain that an appeal has been lodged without any real prospect of success. [5]

I accept that caution must be exercised before characterising an appellant’s case on appeal as weak. However, the appellant’s case on the Limitation Act runs into the difficulty that it appears to be inconsistent with the decision of a five member Court of Appeal on the meaning of s 50D(1)(b) of the Limitation Act. In State of New South Wales v Gillett, [6] it was held that a cause of action in negligence was not discoverable for the purposes of s 50D of the Limitation Act unless and until the plaintiff (who had sought advice) received legal advice that the defendant was legally responsible for the plaintiff’s inquiry.

Given the findings of fact made by the primary Judge are apparently not challenged, it is not clear to me how the appellant can distinguish the decision in Gillett.

There may be more substance to the appellant’s argument that the award of general damages was excessive. However, in the absence of developed submissions on the point no more can be said than that there is an arguable case for reducing the damages by some amount. On the material before me, I am unable to make any assessment of whether the ground of appeal relating to the future dental expenses has any substance. At this stage, the ground appears to be no more than an assertion that the damages awarded under this head were excessive.

The evidence as to the appellant’s financial position, as Mr McKenzie acknowledged, is vague and incomplete. The appellant himself has chosen not to put on affidavit evidence. The solicitor’s affidavit on information and belief, although asserting that the appellant will face severe financial hardship if no stay is granted, does not descend into detail as to the nature of the hardship or the extent of the appellant’s assets and resources. The affidavit does not state, for example, that the Casula property is the appellant’s only significant asset, and does not address whether other assets are held by the appellant. Nor does the solicitor’s affidavit explain how and in what respects the refusal of a stay would adversely affect the appellant’s business, as the affidavit claims.

I would have been sympathetic to a stay of enforcement of at least a portion of the judgment sum had there been evidence that the respondent may be unable to repay the whole of the judgment sum should the appeal be upheld. There was, however, no evidence to this effect and, despite the issue being highlighted in argument, Mr McKenzie did not submit that there was any risk that the appellant would be disadvantaged if the appeal was successful.

I do not think that the undertaking offered by the appellant tips the balance in favour of ordering a stay of the orders made by the primary Judge. The evidence as to the value of the appellant’s property consists of no more than an assertion made by his solicitors on instructions in the course of correspondence. It is not clear on the evidence whether the appellant’s equity in the property will be sufficient to cover the judgment sum, interest and costs. The proffered undertaking would not prevent the appellant disposing of other assets that might otherwise provide a readier means of enforcing the judgment than attempting to levy execution on land. The undertaking offered by the appellant does not afford the respondent with the protection that would be provided, for example, by a bank guarantee or moneys paid into court.

In the state of the evidence I have described and taking into account the apparent weakness of the appellant’s case, the motion for a stay of the primary Judge’s orders should be dismissed. There is no reason why costs should not follow the event.