Banov v Ciric

[2014] NSWDC 340

District Court

New South Wales

Medium Neutral Citation:	Banov v Ciric [2014] NSWDC 340
Hearing dates:	28 January 2014
Date of orders:	28 January 2014
Decision date:	28 January 2014
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	I decline to make the orders sought in the plaintiff’s notice of motion filed on 28 January 2014.
Catchwords:	CHARGING ORDER – in respect of prior security – previous interlocutory stay pending appeal – on condition of security – no security provided – appeal dismissed – stay no longer in force
Category:	Procedural and other rulings
Parties:	Dana Banov (plaintiff) Branislav Ciric (first defendant) Liljana Gacic (second defendant) Aleksandra Gacic (third defendant)
File Number(s):	2004/191263
Publication restriction:	None

Judgment

1. In this matter Dana Banov seeks an order against Liljana and Aleksandra Gacic in the following terms:

“1 A charging order in favour of the judgment creditor to apply to the following security interests:

Trust Funds held by judgment debtors’ solicitor David Leamey.

2 The chargee be restrained from dealing with the security interests otherwise than in accordance with the directions of the judgment creditor, until further order of the court or until the judgment debt against the judgment debtor is satisfied in full.”

2. The application is made ex parte by the plaintiff, self-represented. It arises out of a judgment of this Court on 11 May 2007 for an amount in excess of $200,000. The defendants appealed to the Court of Appeal. The Court of Appeal granted a stay of the judgment of Judge Neild on the following terms as recorded:

“ADJUD: 1 TERMS: 1 STAY THE JUDGMENT IN RELATION TO THE ORDERS MADE BY NEILD DCJ IN THE DISTRICT COURT ON 11 MAY 2007 ON THE UNDERTAKING GIVEN BY MR BEAZLEY SOLICITOR FOR THE CLAIMANTS THAT IF THE CLAIMANTS OBTAIN JUDGMENT IN THE DEFAMATION PROCEEDINGS PRESENTLY PENDING IN THE SUPREME COURT MONEYS WILL BE RETAINED PENDING DETERMINATION OF THE APPEAL IN THESE PROCEEDINGS SUCH AMOUNT TO BE HELD NOT TO EXCEED THE JUDGMENT DEBT OF $220,641.41 TOGETHER WITH INTEREST ON THE JUDGMENT SINCE JUDGMENT AT THE RATE OF 10% AND COSTS WHICH ARE ESTIMATED TO BE $17,000 2 THE COSTS OF TODAY WILL BE COSTS IN THE APPEAL (Motions 24/07/2007)”

3. Thus, it appears that the nature of the stay order made by the Court of Appeal, and Ms Banov does not disagree with this construction, is that the stay was an interlocutory order given pending the determination of the appeal.

4. The nature of the order indicates that it was expected that there might be moneys available from the defamation proceedings prior to the appeal being determined. However, that did not occur. The defamation proceedings were initially unsuccessful and the appeal was not pursued by the claimants/defendants.

5. I am informed by Ms Banov, although I have no document confirming it, that the appeal was dismissed by reason of the failure of the claimants/defendants to comply with orders in respect of the appeal. Once the appeal was dismissed it seems that the interlocutory order granting the stay was then spent. Ms Banov became entitled, by reason of the dismissal of the appeal, to enforce the judgment.

6. Ms Banov concedes before me that she did enforce the judgment in filing a Creditor’s Petition against one of the three defendants. This was successful and Mr Branislav Ciric was bankrupted. The other defendants filed Debtor’s Petitions and were also bankrupted.

7. In those circumstances, it might be thought that no more would be heard of the judgment in favour of Ms Banov given by Judge Neild. However, in recent times, apparently as a result of some appeal, all three of the defendants have been successful in the defamation proceedings and their current solicitor holds some moneys in trust as a result of that success. He has written to Ms Banov informing her that he does not think she has any entitlement to those moneys, for two reasons: first, the stay is no longer in place because the proceedings in the Court of Appeal are concluded and, secondly, because, contrary to the deed of agreement leading to the stay, Ms Banov enforced the judgment in presenting or pursuing a Creditor’s Petition against Mr Ciric.

8. As to the second of those matters, there is no evidence before me that Ms Banov signed the “DEED OF AGREEMENT AND IRREVOCABLE AUTHORITY TO PAY”, which led to the granting of an interlocutory stay by the Court of Appeal. She denies executing the document, and the copy in evidence does not contain her signature. But whether Ms Banov pursued the District Court judgment against Mr Ciric or not does not seem to be material. The stay was intended to operate pending the determination of the Court of Appeal proceedings and those proceedings were long ago determined. As a result, the effect of the stay was spent. That circumstance left Ms Banov free to enforce the judgment against Mr Ciric which she did. But there also remained no continuing obligation to her in respect of any moneys resulting from the defamation proceedings.

9. Once the three judgment debtors were bankrupt, Ms Banov’s entitlements would be limited to a claim in the bankruptcy. The evidence before the Court, including the letter of Mr Leamey of 24 January, indicates that Ms Banov did make a claim in the bankruptcy, as she was listed in the list of creditors for each of the three bankrupts.

10. I should note that Mr Leamey has indicated in the letter tendered by Ms Banov that he would hold the funds pending resolution by the Court if he received “a Court sealed document wherein you [Ms Banov] make claim to the funds”. In other words, if Ms Banov believes she is entitled to the funds held by Mr Leamey and commences proceedings to recover them, he has indicated that he will retain the funds pending the resolution of those proceedings. Ms Banov has not chosen to take that course, but has come before the Court ex parte for an order that is either against Mr Leamey, or certainly impacts upon him, without apparently giving him notice of the terms of the order sought. That is not the appropriate way to proceed.

11. In any event, the orders sought by Ms Banov seem to go beyond any entitlement arising under the terms of the stay.

12. For all these reasons, I propose not to grant an order in the terms sought. I note that I was prepared to enable the matter to be brought back to this Court expeditiously for a contested application to be heard, but Ms Banov indicated that she is not presently minded to take that course.

13. I decline to make the orders sought in the plaintiff’s notice of motion filed on 28 January 2014.

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Decision last updated: 25 June 2015