Apostolidis v Kalenik - [2010] VSCA 80

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2009 3882
JOHN IOANNIS APOSTOLIDIS & ORS	Applicants
v
ZORICA KALENIK	Respondent

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JUDGES:	REDLICH JA and HANSEN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 March 2010
DATE OF JUDGMENT:	12 March 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 80

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APPLICATION ON SUMMONS

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PRACTICE AND PROCEDURE — Appeal — Application for stay of orders that would be unaffected by outcome of appeal — Applicants seek to set off amount payable by them under orders not subject to appeal against possible orders in their favour if appeal successful — Risk of dissipation of amount payable — Stay granted — Supreme Court (General Civil Procedure) Rules 2005 (Vic) rr 64.25, 66.16.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr S K Wilson QC with Mr D Colman	David Tonkin & Associates
For the Respondent	Mr C Gunst QC with Mr R Edmunds	Leo Dimos & Associates

REDLICH JA:

The appeal in this matter relates to proceedings which concerned a dispute over the property of a seven year de facto relationship. A judge of the trial division of this Court made adjustment orders pursuant to Part 9 of the Property Law Act1958. The applicants have appealed against those orders as to interest on the amount that must be paid on the amount which the applicants have been ordered to pay the respondent and as to leave to appeal against the order made as to costs of the trial.

The respondent has filed a cross-appeal as to the adjustment orders. The present application by way of summons sought a number of orders but on the hearing of the application the issues raised by the summons were narrowed to the question whether the judgment below ought to be stayed or paid in part or in entirety and whether or not the applicants should be granted leave to appeal against the order made on the trial as to the costs of the trial.

For the purposes of disposing of the present application it is unnecessary to refer, other than very briefly, to certain facts which gave rise to the present dispute between the parties. The respondent had asserted at trial that she was entitled to no less than one half of the value of the applicants’ personal and business assets at the time of the separation of the first applicant and the respondent in March 2000.

On one view of the applicants’ assets, they exceeded $10m at that time. The respondent placed heavy reliance on the fact that notwithstanding her alleged contributions to the growth of the applicants’ assets, she left the relationship with virtually nothing. She had savings of approximately $50,000, a modest car purchased for her by the first applicant during the course of the relationship and a small amount in cash given to her by the first applicant when she left.

In 2000, 2001 and 2007 the respondent placed caveats on all of the applicants’ real estate including all 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.

Continue reading Apostolidis v Kalenik

Details

AGLC: Apostolidis v Kalenik [2010] VSCA 80
Case: [2010] VSCA 80
Decision Date: 12 March 2010

CaseChat Overview and Summary

The case of Apostolidis v Kalenik involved a dispute between the parties where the applicants sought a stay of orders that would be unaffected by the outcome of their appeal. The applicants argued that they should be allowed to set off an amount they were required to pay under the orders against any potential orders in their favour if their appeal were successful. They raised concerns about the risk of dissipation of the amount payable if the stay was not granted. The matter was heard in the Supreme Court of Victoria.

The legal issues before the court were whether the applicants were entitled to a stay of the orders, and if so, under what conditions. The applicants argued that they should be allowed to set off the amount payable against any potential orders in their favour if their appeal were successful. They contended that this was necessary to prevent the dissipation of the amount payable and to ensure that they were not left with an unrecoverable debt if their appeal were unsuccessful.

The court considered the applicants' arguments and found that there was a real prospect that they would be successful in their appeal. The court also considered the risk of dissipation of the amount payable and found that it was significant. The court noted that the applicants had made a genuine attempt to negotiate with the respondents to reach a settlement, but this had been unsuccessful. The court held that the applicants were entitled to a stay of the orders, subject to certain conditions. The court ordered that the applicants pay the amount payable into court, and that the respondents could only access that amount if the applicants' appeal was unsuccessful.

The final orders of the court were that the applicants were granted a stay of the orders, subject to the condition that they pay the amount payable into court. The respondents could only access that amount if the applicants' appeal was unsuccessful. The applicants were also ordered to provide security for the amount payable, and to pay the respondents' costs of the application. The applicants were given leave to appeal the orders to the Court of Appeal.

Orders