Anderson v Tisher Liner and Co
[2016] VSC 319
•7 June 2016
| 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 the warrant of seizure and sale pending the outcome of the appeal. Associate Justice Lansdowne’s reasons for her orders of 24 May 2016 are set out under ‘Other Matters’ in her order. I have read these.
I have also read her Honour’s reasons for refusing the plaintiff’s application for payment by instalments. Her Honour set out a chronology of events from November 2013 when the original debt to Tisher Liner became outstanding. In substance, her Honour was unimpressed with the applicant’s proposal to pay $250 per month towards the total costs bill of $5,178 for a period of two months, and considered the application had the effect of removing the requirement that costs orders be paid as a condition of the stay granted on 24 May 2016.
Today’s proceeding is not an appeal of her Honour’s 24 May 2016 orders, nor is it an appeal against her Honour’s orders of 1 June 2016. It is merely an application by the order under r 66.16 of the Supreme Court (General Civil Procedure) Rules 2015 to stay the execution of the impugned warrant pending the outcome of the appeal of Lansdowne AsJ’s orders of 24 May 2016.
In the event that this application is unsuccessful, the warrant will be executed and the applicant’s property will be auctioned on Thursday, 9 June 2016 – that is, the day after tomorrow.
Rule 66.16 empowers the Court generally to stay the execution of a judgment. It may be stayed for such time and on such terms or conditions as the Court thinks fit.
In Maher v Commonwealth Bank & Anor[1], the Court of Appeal considered factors relevant to the exercise of this discretion. Ordinarily, a successful party is entitled to the benefit of the judgment obtained below.[2] The applicant for a stay bears the onus of justifying a stay.[3] Special or exceptional circumstances will exist where for any reason there is a real risk that it will not be possible for a successful appellant to be restored substantially to his or her former position if the judgment is executed.[4] A stay should not be granted unless there is at least an arguable ground of appeal, although otherwise speculation as to the ultimate prospects of success is usually inappropriate.[5]
[1][2008] VSCA 122.
[2]Ibid, [20].
[3]Ibid, [20].
[4]Ibid, [25], citing Cellante and Ors v G Kallis Industries Pty Ltd [1991] 2 VR 653, 657 (Young CJ).
[5]Ibid, [27].
In this matter, I have concluded that it is appropriate to grant a stay pending the resolution of the appeal. I do so for the following reasons:
A.If I deny the stay, the applicant’s residence – a unit in Reservoir - will be sold on Thursday. Were this to occur, the applicant would not be able to be restored substantially to her former position in the event that she succeeds in her appeal of the orders of 24 May 2016.
B.The amount owing under the warrant is approximately $30,000, about 10% of the value of the applicant’s unit.
C.In a separate proceeding, the subject property is also the subject of a possession order in favour of the applicant’s mortgagee. The applicant has applied for leave to appeal that order, and the application, together with the appeal if leave is granted, will be heard on 20 July 2016. The Court of Appeal has granted a stay in favour of the applicant in those proceedings, which has the effect of staying the mortgagee from taking possession and disposing of the property until the relevant leave/appeal is determined (‘Court of Appeal stay’).
D.In my view, if I were to refuse a stay of the warrant in the present proceeding it would undermine the stay that has been granted by the Court of Appeal, and may elevate the interests of the respondents in this proceeding (Tisher) ahead of the mortgagee.
E.I am of the view that there is arguably some tension between two of the orders made by her Honour on 24 May 2016, being Orders
(1)Subject to compliance with Order 5 execution of the warrant issued on 21 January 2016 is stayed until 4.00pm Thursday 4 August 2016.
and
(5)The applicant pay the costs ordered in Orders 3 and 4 by 5.00pm Friday 3 June, 2016.
The applicant argues that the stay granted by Order 1 ought not properly be conditioned upon the payment by the applicant of the costs set out in Orders 3 and 4.
As I understand it, the applicant argues that if it were appropriate for Lansdowne AsJ to stay the execution of the warrant for the reasons provided, namely to avoid undermining the Court of Appeal stay, then it was not appropriate for her Honour to condition the stay upon the payment of costs of the proceeding. It follows that if her Honour were correct to conclude a refusal to grant a stay would undermine the Court of Appeal stay, it cannot be that a determination of whether or not those rights are undermined hinges on whether the applicant is able or willing to pay the proceeding costs by a specified date. I consider there is some force in this argument.
For these reasons, I order as follows:
(1)Pursuant to r 66.16 of the Supreme Court (General Civil Procedure) Rules 2015, execution of the Warrant No: SW160006344, issued 21 January 2016 is stayed pending the outcome of the appeal of the orders of Associate Justice Lansdowne made on 24 May 2016, to be determined by a Judge of the Trial Division of the Supreme Court of Victoria on a date to be fixed.
(2) Costs reserved.
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