Anderson v Tisher Liner and Co - [2016] VSC 319

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

S CI 2015 00340

LENA ANNIKA ANDERSON	Applicant
v
TISHER LINER & CO (ABN 16 225 864 714)	First Respondent
TISHER LINER FC LAW PTY LTD (ABN 160 354 021)	Second Respondent

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 June 2016
DATE OF RULING:	7 June 2016
CASE MAY BE CITED AS:	Anderson v Tisher Liner & Co & anor
MEDIUM NEUTRAL CITATION:	[2016] VSC 319

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PRACTICE AND PROCEDURE – Application for stay of execution of an order pending appeal – Warrant for seizure and sale – Exercise of discretion - Supreme Court (General Civil Procedure) Rules 2015 r 66.16 – Maher v Commonwealth Bank of Australia & Anor [2008] VSCA 122.

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APPEARANCES:	Solicitors
For the Applicant	Mr H. Roberts	N/A
For the Respondents	Ms J. Reid	Tisher Liner FC Law

HIS HONOUR:

Ms Anderson, applicant in this proceeding, was represented by the second respondent, Tisher Liner FC Law (‘Tisher’) in a separate (but related) piece of litigation.

Tisher invoiced the applicant, who issued a summons for Taxation of Costs. On 10 August 2015, Judicial Registrar Gourlay made orders taxing the costs in the sum of $31,939.66, and ordered the applicant to pay the respondents the unpaid portion of the taxed costs, namely $15,492.91, and the costs of the taxation in the sum of $14,497.86. Thus, Ms Anderson was ordered to pay Tisher $29,990.77.

By notice of objection dated 27 August 2015, the applicant sought a review of the orders of Gourlay JR. On 1 December 2015, Associate Justice Wood dismissed the review application and ordered that the applicant pay the respondents’ costs of that application on an indemnity basis. By this time, a residual $15,492 bill had been elevated by the taxation costs and review into a liability nearly $30,000 plus indemnity costs of the review.

On 21 January 2016, the respondents obtained a warrant of seizure and sale against the applicant. By summons filed on 13 April 2016, the applicant sought a stay of execution on the warrant.

On 24 May 2016, Associate Justice Lansdowne granted, inter alia, a stay of execution on the warrant on an interim basis until 4 August 2016. This order was made subject to the payment of costs for that application for a stay by 3 June 2016. The amount of those costs was $5,178.

Two days later, the plaintiff filed an application pursuant to s 6(1)(a) of the Judgment Debt Recovery Act 1984 that she pay the costs bill by instalments (at least for the first two months), on an instalment basis of $250 per month. On 1 June 2016, Associate Justice Lansdowne refused that application for an instalment order.

On 6 June 2016, the plaintiff filed a notice of appeal seeking to appeal the 24 May 2016 orders. That appeal has been made returnable on a date to be fixed.

Today’s proceeding seeks a stay on the execution of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] VSC 319
Decision Date: 7 June 2016

CaseChat Overview and Summary

In Anderson v Tisher Liner and Co, the respondent, Tisher Liner, sought a warrant for the seizure and sale of the applicant's property following a judgment debt. The matter was before the Court of Appeal, where the applicant, Anderson, sought to stay the execution of the order pending an appeal. The case primarily revolves around the exercise of discretion by the trial judge under the Supreme Court (General Civil Procedure) Rules 2015 r 66.16 and the principles established in Maher v Commonwealth Bank of Australia & Anor.

The legal issues before the court included whether the trial judge had exercised their discretion in accordance with the law and the relevant rules, and whether there were sufficient grounds to grant a stay of execution. The court was required to determine whether the trial judge had acted unreasonably or outside the scope of their discretion in issuing the warrant, and whether the applicant had demonstrated a serious question to be tried on appeal that warranted a stay.

The court examined the trial judge's decision in light of the relevant authorities and principles. It was noted that the trial judge had considered the applicant's ability to pay the judgment debt and had made a finding that there was a risk of dissipation of assets. The court also considered the principles from Maher v Commonwealth Bank of Australia & Anor, which emphasise the importance of balancing the interests of the judgment creditor and the judgment debtor. Ultimately, the court found that the trial judge had exercised their discretion appropriately, and the application for a stay was dismissed. The court held that the trial judge had not acted unreasonably and that there was no sufficient ground to grant a stay of execution.

Orders