Bisognin v Hera Project Pty Ltd - [2017] VSCA 195

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0079

GINO ANDREW BISOGNIN and LEAH JOAN BISOGNIN	Applicants
v
HERA PROJECT PTY LTD (ACN 163 685 041)	Respondent

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JUDGES:	TATE and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 July 2017
DATE ORDERS MADE:	17 July 2017
DATE REASONS PUBLISHED:	27 July 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 195
JUDGMENT APPEALED FROM:	[2017] VSC 268 (Riordan J)

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PRACTICE AND PROCEDURE – Application for stay of proceedings – Failure to establish special circumstances – Unable to establish that compliance with the orders made below would render the appeal nugatory – Prejudice – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr J A Ribbands with Mr L P Wirth	T F Grundy
For the Respondent	Mr N Pane QC with Mr J J Whelen	Russell Kennedy

TATE JA
KYROU JA:

On 17 July 2017 this Court made orders for the dismissal of an application for a stay of orders made by Riordan J on 22 May 2017 and 29 June 2017.[1] The stay was sought by the applicants, Gino and Leah Bisognin (‘the Bisognins’), pending the hearing and determination of their application for leave to appeal, and, if leave is granted, the appeal, against the orders made by Riordan J.[2] At the time of dismissing the application for a stay, this Court also made orders that the application for leave to appeal and the appeal be heard together and for that hearing to be expedited.
[1]Hera Project Pty Ltd v Bisognin [No 3] [2017] VSC 268 (‘Riordan J reasons’). All references in these reasons to Riordan J’s order of 29 June 2017 are to that order as corrected on 30 June 2017.
[2]The application for a stay was made pursuant to rr 64.39 and 66.16 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules of Court’).

At the time of making those orders we indicated that we would provide reasons in support of our orders as soon as practicable. These are those reasons.

Introduction and summary

The Bisognins are the registered proprietors of land known as 1 Adrian Street, Cranbourne East. By contract dated 13 March 2015, which they executed on 25 March 2015, they agreed to sell southern Lot 1 (‘the land’) as vendors, to the purchaser, Hera Project Pty Ltd (‘Hera’), for $3.6 million (‘the 2015 Contract’). Hera is the respondent to the application for leave to appeal and was the respondent to the application for a stay. When settlement did not occur by the due date, 31 August 2016, the Bisognins sought to terminate the 2015 Contract. Before Riordan J, Hera sought an injunction restraining the Bisognins from exercising a power of termination under the 2015 Contract and also sought specific performance. The judge granted specific performance against the Bisognins on 22 May 2017.[3] On 29 June 2017 he gave directions for certain steps to be taken by the Bisognins in aid of specific performance.[4]
[3]See [30] below.
[4]See, especially, [38]…

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: [2017] VSCA 195
Decision Date: 27 July 2017

CaseChat Overview and Summary

Bisognin sought leave to appeal from an order that dismissed an application for an interlocutory injunction and awarded costs against her. The primary issue was whether the court should grant a stay of proceedings pending the outcome of the appeal. The legal issue was whether the applicant had established special circumstances that would justify a stay.

The court considered whether Bisognin had demonstrated special circumstances that warranted a stay of proceedings. The court held that it was not sufficient to argue that an appeal had a real prospect of success or that there would be significant prejudice if an interlocutory injunction was not granted. Rather, Bisognin needed to show that compliance with the orders made below would render the appeal nugatory or that there would be significant prejudice if the stay was not granted. The court found that Bisognin had not established such special circumstances. The court also noted that Bisognin had not demonstrated that there would be significant prejudice if the costs order was enforced. The court held that the application for a stay of proceedings should be refused.

The court dismissed the application for leave to appeal. The orders made below were to stand.

Orders