Bostik (Australia) Pty Ltd v Gorgevski, D

[1991] FCA 787

Re: BOSTIK (AUSTRALIA) PTY LTD
And: VDIMITRJA GORGEVSKI
No. V G263 of 1991
FED No. 787
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Heerey J.(1)

CATCHWORDS

Practice and Procedure - judgment - appeal pending - stay of execution - O.52 r.17 Federal Court Rules - discretion - appellant's prospect of recovering amount of judgment if paid and appeal successful - costs - relevance of

HEARING

MELBOURNE

#DATE 7:11:1991

Counsel for the Appellant: Mr T J Ginnane

Solicitors for the Appellant: Sly and Weigall

Counsel for the Respondents: Mr J L Bourke

Solicitors for the Respondents: Goulopoulos Shiels and Mangopoulos

JUDGE1

The appellant applies under O.52 r.17 for a stay of execution pending appeal. The judgment in question was for damages for $195,000 for breach of an award by reason of the allegedly harsh and unjust dismissal of the respondent from the appellant's employ. It is accepted that there is an arguable appeal. Moreover, the case raises some important points of principle, including the question whether terms in a Federal award may be implied into a contract of employment. I am told that a request has been made for a Full Court of five members to be convened to reconsider an earlier Full Court decision on this point. The appeal will probably be heard next March.

1. Subject to certain undertakings proffered on behalf of the respondent to which I shall refer in a moment, I dismiss the application. My reasons are as follows.

2. The appellant has not made out a case that it has no reasonable prospect of recovering the money if the appeal succeeds. The respondent and his wife own two properties: their home in Thomastown valued at $175,000 to $190,000 subject to a mortgage of $47,200, and a house in Preston occupied by their son-in-law and daughter valued at $95,000 to $110,000 and unencumbered.

3. Counsel on behalf of the respondent has offered a registrable mortgage by the respondent and his wife in the sum of $195,000 over both properties to secure the return of that sum in the event of the appeal succeeding. Since the joint equity is approximately $235,000, it would seem there is a reasonable prospect of the appellant recovering its money, particularly as there has been no suggestion that the appellant and his wife are, by reason of business operations or extravagant lifestyle or any other reason, likely to dissipate the money. They will of course need money for legal costs. I regard the need of the respondent to provide for legal costs of the appeal as a factor weighing against the stay.

4. Recent decisions have emphasised the broad nature of the discretion. In Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 at 694, the New South Wales Court of Appeal referred to the need for the applicant to show:
   

A proper basis for a stay that will be fair to all the parties.

I do not read the judgment of Morling J. in Australian Federation of Consumer Organisations Incorporated v Tobacco Institute of Australia Limited (1991) ATPR 52,989 at 52,992 as indicating that the question of the respondent's costs is irrelevant. In the present case, it seems to me there are strong considerations of public policy which make it desirable that the Full Court on this important appeal should have the essential assistance provided by legal representation at an appropriate level.

1. The appellant put an alternative case, namely, that a stay should be granted subject to payment only of $45,000 (an estimated figure for the respondent's legal costs) secured by a mortgage over the Preston property. I do not accede to this. The respondent has a judgment of this Court for $195,000, with a penalty of $700. He should be entitled to the benefit of it. If he spends the money, the assets remain. I think the appellant is sufficiently protected. The application is dismissed with costs.

2. I note the undertaking that the respondent and his wife will grant a mortgage in registrable form over their properties at Thomastown and Preston in the sum of $195,700 conditioned on the appellant being entitled to recovery of that sum in the event of the appeal succeeding, and that they further undertake that they will not without the consent of the appellant or the leave of the Court increase the sum secured by the existing mortgage over the Thomastown property.

3. I order that costs of this application be reserved with liberty to apply.