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Bata v Pathik

Bata v Pathik

Case [2025] VSCA 156 3 July 2025

Appeal

Stay of Proceedings

Costs

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2025 0037

MARK BATA	Applicant
v
AMITABH PATHIK & ORS (ACCORDING TO THE ATTACHED SCHEDULE)	Respondents

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JUDGES:	LYONS and KENNY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 June 2025
DATE OF JUDGMENT:	3 July 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 156
JUDGMENT APPEALED FROM:	[2025] VCC 43 (Judge Burchell)

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PRACTICE AND PROCEDURE – Appeal – Application for stay of execution of judgment debt – Principles to be applied in stay applications pursuant to r 64.39 – Whether appeal will be rendered nugatory because real risk not restored to former position if appeal successful – Whether execution of judgment debt requires sale of ‘family home’ – Sale of family home if the subject matter of the proceedings may constitute special or exceptional circumstances to justify stay – Sale of family home may be relevant notwithstanding not subject matter of proceeding – Sale of family home to meet judgment debt not itself sufficient to justify special circumstances – Insufficient evidence of financial position and consequences of medical condition to give rise to special circumstances – Lack of candour – Stay refused.

Supreme Court (General Civil Procedure) Rules 2015, r 64.39.

Maher v Commonwealth Bank of Australia [2008] VSCA 122; Neate v Thoroughbred International Marketing Pty Ltd (2012) 34 VR 318; Sandri v O’Driscoll [2013] VSCA 281, distinguished; Ozden v Commonwealth Bank of Australia [2013] VSCA 195, distinguished.

PRACTICE AND PROCEDURE – Appeal – Stay of execution – Principles to be applied in stay applications pursuant to r 64.39 – Whether real risk that application for appeal stifled because real risk of bankruptcy – Service of bankruptcy notice not sufficient special circumstances – Insufficient evidence of financial position to conclude real likelihood applicant will be bankrupted or that appeal stifled because cannot meet judgment debt – Stay refused.

Supreme Court (General Civil Procedure) Rules 2015, r 64.39.

Narain v Euroasia (Pacific) Pty Ltd [2008] VSCA 195 ; Sami v Roads Corporation [2009] VSCA 44; Kairouz v Jasper Nominees Ltd [2024] VSCA 68.

PRACTICE AND PROCEDURE – Appeal – Security for costs of appeal – Whether financial position of applicant for leave to appeal problematic thereby creating a risk of non-satisfaction of costs order of respondent, if successful – Insufficient evidence of financial position such that financial position ‘problematic’ – Whether order for security for costs would stultify or stifle appeal – Evidence of access to third party funds unexplained and/or undisclosed source of funds to meet costs orders – Security granted.

Supreme Court (General Civil Procedure) Rules 2015, r 64.38(4).

Cwalina v Rose [2025] VSCA 53; Mikkelsen v Li (2022) 71 VR 232.

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Counsel
Applicant:		A Bartzis
Respondents:		D Klempfner
Solicitors
Applicant:	Starnet Legal Pty Ltd
Respondents:	Francke Lawyers Pty Ltd

Hello

LYONS JA

KENNY JA:

In County Court proceedings, Mr Bata, the applicant in this Court, was found liable in the sum of $1,910,596.47 to the first respondent,…

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 Bata v Pathik

Details

AGLC: Bata v Pathik [2025] VSCA 156
Case: [2025] VSCA 156
Decision Date: 3 July 2025

CaseChat Overview and Summary

The case of Bata v Pathik involved an appeal against the refusal of an application for a stay of execution of a judgment debt. The applicant sought to stay the execution of a judgment debt pending the outcome of an appeal, arguing that the sale of the family home would be required to satisfy the debt, and that the financial position and medical condition of the applicant constituted special or exceptional circumstances warranting a stay. The applicant also sought an order for security for the costs of the appeal, arguing that the financial position of the applicant was problematic and that there was a risk that the applicant would be unable to satisfy any costs order if the appeal were successful.

The legal issues before the court were whether the appeal would be rendered nugatory if the stay were not granted, and whether the financial position and medical condition of the applicant constituted special or exceptional circumstances warranting a stay. The court also had to consider whether the applicant's financial position was problematic such that an order for security for the costs of the appeal should be granted.

The court found that the applicant had not provided sufficient evidence of their financial position or the consequences of their medical condition to demonstrate that special or exceptional circumstances existed. The court noted that while the sale of the family home to satisfy the judgment debt may be relevant to the question of special or exceptional circumstances, it was not in itself sufficient to justify a stay. The court also found that the service of a bankruptcy notice did not constitute special or exceptional circumstances, and that there was insufficient evidence of the applicant's financial position to conclude that there was a real likelihood that the applicant would be bankrupted or that the appeal would be stifled because the applicant could not meet the judgment debt. The court also found that the applicant's lack of candour in providing evidence of their financial position was a relevant consideration. The court granted an order for security for the costs of the appeal, finding that the applicant's financial position was problematic and that there was a risk that the applicant would be unable to satisfy any costs order if the appeal were successful.

The court refused the application for a stay of execution of the judgment debt, and granted an order for security for the costs of the appeal.

Orders