Bristow v Tuczynski
[1999] VSC 453
•10 November 1999
SUPREME COURT OF VICTORIA
PRACTICE COURT Do not Send for Reporting Not Restricted
No. 6277 of 1999
| ANDREW N. BRISTOW | Plaintiff |
| v. | |
| JOHN TUCZYNSKI AND ANOTHER | Defendants |
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JUDGE: | BEACH, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 10 NOVEMBER 1999 | |
DATE OF JUDGMENT: | 10 NOVEMBER 1999 | |
CASE MAY BE CITED AS: | BRISTOW v. TUCZYNSKI | |
MEDIA NEUTRAL CITATION: | [1999] VSC 453 | |
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CATCHWORDS: Practice and Procedure – Application for a stay of execution of warrant of seizure and sale – Application refused.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr. M. Settle | Sue Owens |
| For the Defendants | Mr. A. Swanwick | Robert Wood & Associates |
HIS HONOUR:
The plaintiff in these proceedings is a barrister practising at the Victorian Bar.
In about September 1995 the plaintiff was briefed by solicitors who were then acting on behalf of a company called Liberty USA Pty Ltd. The directors and shareholders of Liberty are the defendants John Tuczynski and Lyn Tuczynski.
It would appear that Liberty instituted a proceeding in the Federal Court of Australia against Telstra Limited and it was in respect of that proceeding that the plaintiff was briefed to appear and to give advice.
As I would understand it, prior to undertaking any work on behalf of Liberty the plaintiff required and obtained a guarantee and charge and an agreement in respect of the fees to be incurred by him and also in respect of certain outstanding fees. The guarantee, of course, was given by the Tuczynskis. It transpired that his fees were ultimately not paid by Liberty and in due course the plaintiff instituted proceedings in the Melbourne Magistrates' Court against the Tuczynskis in respect of the guarantee seeking to recover from them the sum of $18,000. That proceeding was defended by the Tuczynskis, but on 23 November 1998 judgment was given in favour of the plaintiff against the Tuczynskis in the sum of $18,000 together with costs of $10,252 and a further sum of $1,815.85.
The Tuczynskis appealed against the decision of the Magistrates' Court to this court. In due course the appeal came before O'Bryan, J. On 20 May 1999 His Honour dismissed the appeal and ordered that the Tuczynskis pay the plaintiff's costs of the appeal.
On 26 July 1999 the Taxing Master taxed the plaintiff's costs of the appeal in the sum of $8,282.10.
The Tuczynskis did not pay the amount of the Magistrates' Court judgment in favour of the plaintiff, nor did they pay the costs ordered against them in respect of the appeal.
In due course the plaintiff caused his Magistrates' Court judgment to be registered in this court. On 26 July 1999 the plaintiff caused a warrant of seizure and sale to be issued out of the court in respect of the Magistrates' Court judgment. On 7 September 1999 the plaintiff caused a warrant of seizure and sale to be issued out of the court in respect of his tax costs of the appeal.
I now have applications on behalf of the Tuczynskis to restrain the sheriff from executing the two warrants. The basis upon which their application is made is that as recently as yesterday they instituted a proceeding against the plaintiff in the County Court at Melbourne seeking to recover damages from him in respect of what they allege was his negligent conduct of the proceedings involving Liberty USA Pty Ltd in the Federal Court. I have not seen such a writ but rely on counsel for the Tuczynskis for that information.
It is pointed out that as presently advised the sheriff proposes to execute the two warrants in question by effecting a sale of the Tuczynskis' home. It is put that great harm would be caused to them, therefore, if the warrants are not stayed, and that in view of their claim against the plaintiff, which is now on foot in the County Court, it would be appropriate that the warrants be stayed pending the hearing and determination of that claim.
The first obstacle which seems to me to face the Tuczynskis so far as such a claim is concerned is that any cause of action against the plaintiff in negligence may well be not their course of action but that of Liberty. Further, it is trite law that a guarantor under a guarantee which makes him liable without more for the full indebtedness of the debtor cannot rely upon a cross claim for damages which may be available to the principal debtor as against the creditor in reduction of, or as a defence to his liability under the guarantee.
I have considered all the affidavit material on the court file filed on behalf of the Tuczynskis and there is, in my opinion, nothing in that material that causes me to conclude that it is arguable that the plaintiff's conduct in handling the affairs of Liberty was attended by any negligence on his part.
In that situation the application in each proceeding is dismissed with costs to be taxed on a full indemnity basis and paid by Mr and Mrs Tuczynski to the plaintiff, in respect of each application.
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