Capital Securities XVI Pty Ltd v Kozina
[2023] VSC 73
•2 February 2023 (ex tempore), revised 22 February 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
MORTGAGE RECOVERY LIST
S CI 2017 01519
BETWEEN:
| CAPITAL SECURITIES XVI PTY LTD (ACN 601 867 654) | Plaintiff |
| v | |
| NIKO KOZINA & ANOR (according to the attached Schedule) | Defendants |
| ANTONY CHUNG | Third Party |
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JUDGE: | Gardiner AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 February 2023 |
DATE OF JUDGMENT: | 2 February 2023 (ex tempore), revised 22 February 2023 |
CASE MAY BE CITED AS: | Capital Securities XVI Pty Ltd v Kozina & Anor |
MEDIUM NEUTRAL CITATION: | [2023] VSC 73 |
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PRACTICE AND PROCEDURE — Application for an order restraining the execution of warrant of possession issued pursuant to a consent judgment made under terms of settlement reached at a judicial mediation at which all parties were legally represented until the applicant could bring an application to set aside the judgment — Application in the alternative pursuant to r 66.16 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) that there be a stay of execution of the warrant of possession — Subject property was the residence of the second defendant and her co-defendant husband — Delay in bringing application — Application dismissed with costs.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms L Barrett | SLF Lawyers |
| For the Second Defendant | Mr J Kewley | Nevett Ford Melbourne Pty Ltd |
HIS HONOUR:
The second defendant, Ana Kozina, makes an application by summons filed on 27 January 2023 to restrain the plaintiff, Capital Securities XVI Pty Ltd (ACN 601 867 654) (‘Capital’), and the Sheriff of this Court from enforcing a warrant for possession W22012572708 dated 26 October 2022 (‘Warrant’) in respect of the property at 3 Stapledon Court, Corio, Victoria (‘Corio Property’), pending the determination of an application by the defendants to set aside a judgment entered by consent on 8 September 2017. The application to set aside the consent judgment is yet to be made.
At the urgent return of the second defendant’s summons today, the Court was informed that the Sheriff intends to execute the Warrant tomorrow, on 3 February 2023.
The second defendant relies on her affidavit sworn on 31 January 2023, together with an affidavit of Stuart Wilson, her solicitor, affirmed on 1 February 2023. The first defendant, Mr Niko Kozina, is suffering from dementia and has not joined in the summons.
Capital relies on the affidavits of Jason Kean Quah sworn on 1 February 2023 and a second affidavit styled ‘Supplementary Affidavit of Jason Kean Quah’, also sworn on 1 February 2023.
Capital opposes the second defendant’s application.
The Second Defendant’s evidence
Mrs Kozina was born in Bosnia and Herzegovina. Her first language is Croatian, although she also speaks some Bosnian. Her husband, the first defendant, was also born in Bosnia and Herzegovina and he only speaks Croatian. Mrs Kozina and her husband moved to Australia in around 1965. Mrs Kozina cannot write in English nor can she understand much spoken English. She cannot read English other than basic road traffic signs.
Mrs Kozina describes the circumstances leading up to the execution of mortgage and guarantee documentation in favour of Capital in 2016 (‘Documents’). The transaction apparently came about at the behest of their daughter, Maria Alimic, to enable her to secure financial accommodation to obtain bail in respect of criminal charges for fraud and dishonesty offences.
Mrs Kozina states that on 20 September 2016, she attended a meeting with her husband and a solicitor, Anthony Chung, at which the Documents were signed. Prior to this meeting, she had given the original title to the Corio Property to her daughter, Ms Alimic. Mrs Kozina states she was not provided with an interpreter at this meeting and she did not understand much of what Mr Chung said. When the Documents were signed, Mrs Kozina and her husband assumed from what Ms Alimic had told them that the Documents were required to help her obtain bail. Mrs Kozina states Mr Chung did not say anything that contradicted Ms Alimic’s assertion that the Documents were relevant to her bail application, or if he did, she and her husband did not understand him. She states she and her husband signed the Documents because they were deceived by Ms Alimic.
In about October or November 2016, Mrs Kozina received an invoice from Capital to pay an amount of approximately $2,800. She asked Ms Alimic about this and Ms Alimic responded that it was an instalment owing under a loan. The first instalment was paid but because of the Kozinas’ lack of financial means, no further repayments were made.
Mrs Kozina states she obtained the assistance of a lawyer, Murray Pegg of Wightons Lawyers in Geelong, and an interpreter was arranged for two meetings with Mr Pegg. After that, her granddaughter Klementina Alimic (‘Klementina’) attended meetings with Mr Pegg to interpret for them.
Mrs Kozina states she became aware in April or May 2017 that this proceeding had been commenced by Capital against her and her husband to enforce payment of the loan. Wightons Lawyers filed a defence on their behalf.
On 30 August 2017, Mrs Kozina and her husband attended what she describes as a settlement conference with representatives of Capital and Mr Chung. Mr Chung had been joined as a third party by the defendants. It transpires that this occasion was in fact a judicial mediation ordered to take place in respect of the proceeding. It was conducted by Judicial Registrar Hetyey (as his Honour then was).
Mrs Kozina states she was not provided with an interpreter at the mediation, but her other granddaughter, Stefani, was present to act as interpreter. Stefani was 17 or 18 years old at the time. Her first language is English and she speaks limited Croatian. Mr Pegg had indicated to her that it was not appropriate that Mrs Kozina’s other granddaughter, Klementina, attend by reason of the perception of a conflict.
Mrs Kozina states that in a meeting prior to the mediation, Mr Pegg had stated on several occasions words to the effect that they would ‘get their title back’. She states her lawyers were provided with a statement by Ms Alimic, in which she admitted to deceiving them into signing the mortgage and guarantee. Mrs Kozina stated she felt intimidated at the mediation and that Capital’s lawyers stood over her and shouted at her.
Mrs Kozina states she and her husband both signed a document at the mediation, which she thought enabled them to take back the title to their home. I infer this is a reference to the Settlement Agreement dated 30 August 2017 (‘Settlement Agreement’), to which reference will be made below. She states she does not believe that Stefani, who interpreted for them on that occasion, would be capable of understanding the legal implications of that document. She assumed the document they signed would result in the title to their home being sent to Mr Pegg and that he would send it on to her.
Mrs Kozina states that since the mediation she has become aware that the document she signed at the mediation only allowed them to live on the Corio Property for five years and after the expiry of that time, the bank intended to take possession. At the time the document was signed, she did not understand this to be the effect of it. She was unfamiliar with Court procedure and so did not know a consent judgment was made following the settlement conference.
Mrs Kozina states that ‘after about a year’, she spoke to Ms Alimic and asked why they had not received their title back. The Settlement Agreement was given to Ms Alimic, who informed Mrs Kozina of the effect of the document. Mrs Kozina states that sometime later (she cannot recall the date), a letter came from Capital, stating they were required to move out of the Corio Property. On 7 December 2022, she was served with a notice to vacate, requiring that she move out of the Corio Property by 3 February 2023.
Mrs Kozina states she is not in a position to vacate the Corio Property as she is unwell and her husband has dementia. She disputes she and her husband had voluntarily agreed to guarantee or mortgage the Corio Property as is alleged by Capital.
Mrs Kozina states that because of the imminent threat of Capital exercising its alleged rights, she urgently seeks a stay of the execution of Capital’s enforcement rights to enable her to make an application to set aside the consent judgment upon which the Warrant is based. She states she has not made this application earlier as they have had difficulties with funding and Legal Aid and other firms have been closed over the Christmas and New Year period.
The Settlement Agreement that was signed at the mediation in 2017 is exhibited to Mrs Kozina’s affidavit. The Settlement Agreement is signed by:
(a) Capital by its director, Mr Scanlon;
(b) Mr and Mrs Kozina, and witnessed by Mr Pegg, their solicitor; and
(c) Mr Chung’s solicitor, Mr Howard Obst.
The Settlement Agreement provided for Mr Chung to be released by Capital and the Kozinas on payment of sums specified in the Agreement.
Annexed to the Settlement Agreement are proposed minutes of consent orders, whereby the Kozinas are obliged to pay Capital the sum of $267,000 plus interest at the rate of 11.95% from 30 August 2017. The minutes of proposed consent orders also provide that Capital have possession of the Corio Property and the Kozinas pay Capital’s costs incurred by it in enforcing the consent judgment. The proposed minutes of consent orders are signed by Capital’s solicitors, Thomson Geer, and Wightons Lawyers on behalf of the defendants.
Clause 4(b) of the Settlement Agreement entitled Capital to file and obtain a judgment from the Court, but Capital agreed not to enforce the judgment, including the obtaining of the Warrant, until the expiry of five years from 30 August 2017, i.e. 30 August 2022. The orders were made by consent on 8 September 2017.
In his affidavit of 1 February 2023, Mr Stuart Wilson, a solicitor acting on behalf of the second defendant, exhibits a title extract for the Corio Property that records Capital’s mortgage, together with a caveat subsequently registered in favour of FX Money Link International Pty Ltd. Mr Wilson also exhibits an informal ‘curb side’ valuation of the Corio property, provided by Ms Maas of Barry Plant Geelong. Ms Maas appraises the value of the Corio Property as being between $520,000 and $570,000.
Capital’s Evidence
In his first affidavit sworn on 1 February 2023, Mr Quah states he is a partner of SLF Lawyers, the town agents of QBM Lawyers, the solicitors for Capital. He was previously employed by Thomson Geer, who were the town agents for QBM Lawyers when this proceeding was commenced in 2017. He notes the terms of the Settlement Agreement, which provided that Capital obtain a consent judgment against the defendants, but with an agreement not to enforce that judgment for five years from the date of the judgment. He states that in late 2017, and after the consent judgment was entered, he left Thomson Geer and became a partner of SLF Lawyers.
Mr Quah deposes that on 21 September 2016, a loan agreement was signed between Capital, Maria Alimic Pty Ltd as a borrower, and the defendants and Maria Alimic as guarantors. The defendants signed deeds of guarantee dated 21 September 2016, a general security deed of the same date, together with a mortgage of the same date over the Corio Property. Mr Chung witnessed all of those documents.
Mr Quah attended the mediation on 30 August 2017. He states the Settlement Agreement was signed at the mediation by the defendants and witnessed by their then solicitor, Mr Pegg, who represented them at the mediation. Mr Chung was also personally present at the mediation and was represented by Mr Obst of Obst Legal.
Mr Quah observes that Mrs Kozina admits in her affidavit that she was fully aware of the contents of the Settlement Agreement in 2018. He exhibits correspondence from Capital’s solicitors, QBM Lawyers, dated 18 March 2022, reminding them that the due date for payment under the Settlement Agreement was 30 August 2022.
Mr Quah also exhibits correspondence between Ms Alimic and QBM. On 19 June 2022, Ms Alimic sent an email to QBM seeking an extension of time for the defendants to pay the debt they owed to Capital. Ms Alimic stated in the letter that the second defendant’s nephew, who was living overseas, was going to lend the defendants money and this would take some time to arrange. No mention is made of any challenge to the enforceability of the debt owing under the Settlement Agreement and the consent judgment.
On 21 June 2022, QBM Lawyers responded by email asking for a written authority signed by the defendants authorising Ms Alimic to represent them. On 29 June 2022, a signed authority was sent by email to QBM Lawyers. On 6 July 2022, QBM Lawyers sent an email to Ms Alimic, stating that Capital was not prepared to extend the time stipulated for the defendants to make payment.
On 5 September 2022, the defendants’ solicitors, Nevett Ford, informed QBM Lawyers that it had received preliminary instructions to act for the defendants and suggested ‘there may be significant irregularities with respect to the alleged loan agreement between the parties and the consequent settlement agreement and orders’. Mr Quah understands that this was the first occasion on which any suggestion was made that the Settlement Agreement was somehow not enforceable.
In his supplementary affidavit of 1 February 2023, Mr Quah states he has received a portion of Thomson Geer’s file in respect of this proceeding and some documents from the Court’s physical file in this proceeding. He deposes that both defendants received independent and financial advice before signing the loan guarantee and security documents in favour of the plaintiff. Mr Quah exhibits the certificates confirming that independent legal and financial advice was given to the defendants. These certificates were provided to the defendants and Mr Chung certifies he provided the relevant explanations to the Kozinas.
Mr Quah then identifies the attendees at the mediation conducted by Judicial Registrar Hetyey (as he then was) on 30 August 2017. All parties were represented. Mr Pegg, solicitor, appeared for the defendants. Klementina , one of the defendants’ granddaughters who acted as translator at the mediation, also attended on the defendants’ behalf.
Submissions
Mr Kewley of counsel for the defendants stated that the defendants made this application by way of injunction to restrain the Sheriff from taking possession of their Corio Property and further, and alternatively, pursuant to r 66.16 of the Supreme Court (General Civil Procedure) Rules2005 (Vic) (‘Rules’), for a stay of execution of the consent judgment against them. He stated they are elderly and unwell and have nowhere else to live. The restraint is sought to enable an application to set aside the consent judgment entered against them and to have an opportunity to defend this proceeding ‘broadly on a “Amadio” basis’. Mr Kewley observed that because the first defendant, Niko Kozina, has been diagnosed with early-onset dementia, there is no affidavit in support from him.
Mr Kewley outlined the principles applicable in an application for a stay under r 66.16 of the Rules. Referring to Joskovitz v Bonnick,[1] he observed that the Court is required to take into account all the circumstances of the case and is not bound by decisions on other sets of facts.Mr Kewley accepted the starting point should be that the party who obtained judgment is entitled to have it enforced without delay. The circumstances justifying a stay are special circumstances that go to the enforcement of the judgment and not those that go to its validity or correctness.[2]
[1][1964] VR 654, 656.
[2]TC Trustees v JS Darwen (Successors) Ltd (1969) 2 QB 295; State Bank of Victoria v Parry [1989] WAR 240, 244 (Malcolm CJ) (‘Parry’).
As to the claim in the nature of an injunction, Mr Kewley reviewed the principles relevant for application, placing emphasis on the decision of the Victorian Court of Appeal in Bradto Pty Ltd v State of Victoria.[3] In particular, he drew on the observation of Maxwell P and Charles JA that:
[T]he flexibility and adaptability of the remedy of [an interlocutory] injunction as an instrument of justice will be best served by the adoption of the Hoffmann approach. That is … the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been “wrong”, in the sense of granting an injunction to a party who fails to establish his right at the trial, or in failing to grant an injunction to a party who succeeded at trial.[4]
[3](2006) 15 VR 65.
[4]Ibid 73 [35].
Mr Kewley also referred to the decision of Bayley Walk Pty Ltd v Bayley Views Pty Ltd,[5] which concerns an application for a freezing order. In that case, Warren CJ stated:
Bradto … clarified that the question as to what course carries the lower risk of injustice is informed by, amongst other things, the well-established and interrelated considerations of: (1) whether there is a serious question to be tried at trial and the likelihood of the plaintiff succeeding at trial; and (2) where the balance of convenience lies as between the parties.[6]
[5][2006] VSC 213.
[6]Ibid [29].
Mr Kewley submitted the circumstances here are such that the defendants fall, or may fall, within the principles enunciated in Commercial Bank of Australia v Amadio,[7] in which Mason J stated:
Relief on the ground of unconscionable conduct will be granted when unconscientious advantage is taken of an innocent party whose will is overborne so that it is not independent and voluntary, just as it will be granted when such advantage is taken of an innocent party who, though not deprived of an independent and voluntary will, is unable to make a worthwhile judgment as to what is in his best interest.[8]
[7](1983) 151 CLR 447.
[8]Ibid 461.
Mr Kewley also cited a passage of the judgment of Deane J who stated:
In the present case … it was … evident to the bank that Mr. and Mrs. Amadio stood in need of advice as to the nature and effect of the transaction into which they were entering. It is apparent that any such advice would have included the importance to a guarantor of ascertaining from the bank the state of the customer’s account which was being guaranteed and any unusual features of the account. If such information had been obtained by Mr. and Mrs. Amadio, they would not, on the evidence and in the light of the learned trial judge’s finding, have entered into the guarantee/mortgage at all. The whole transaction should be properly seen as flowing from the special disability which was evident to the bank and as being unfair, unjust and unreasonable.[9]
[9]Ibid 481.
Mr Kewley submitted that it is open to the Court, should the consent judgment be subsequently set aside and the defendants allowed to defend the proceeding, to find that Mr and Mrs Kozina were under a ‘special disability’ when they signed the loan, mortgage and guarantee documents, and Settlement Agreement, despite any legal advice given to them at the times they did so. He contended that unconscientious advantage was or may have been taken of them at those times.
Mr Kewley submitted the Court should allow the defendants the opportunity to have the consent judgment against them set aside and once this has been done, for them to defend the proceeding in the normal course.
It was also submitted that while they are doing so, they should be entitled to retain possession of the Corio Property as, being elderly, infirm and having no other place to live, the balance of convenience strongly favours that course. It is said that Capital will suffer no prejudice should the Court adopt that course given that if Capital is successful in defending the second defendant’s application, Capital still holds the mortgage and would be in no materially worse position than it is now. Mr Kewley submitted there was sufficient equity in the relevant property should the Court eventually find the debt plus interest is owed by the defendants to Capital.
In her submissions made on behalf of Capital, Ms Barrett of counsel contended that the power to stay an execution pursuant to r 66.16 of the Rules is a matter for the Court’s discretion and that in these circumstances, the relevant matters for consideration include:
(a) whether there is an arguable basis for the setting aside of the consent judgment;
(b) whether there has been any delay in making the application; and
(c) whether setting aside the consent judgment would cause prejudice to the plaintiff.
As to the first of these factors, Ms Barrett surveyed the chronology of the matter. The mortgages were entered into by the defendants in 2016 and witnessed by their then solicitor, Mr Chung, who provided various certificates in that regard. This proceeding was commenced in April 2017 and defences were filed by the Kozinas, which were predicated on the basis that they did not understand English; that they were deceived by their daughter; that they did not understand the nature of the documents signed and that Capital ought to have known those matters; and/or that Capital ought not be able to rely upon the various certificates signed by Mr Chung.
The matter proceeded to judicial mediation on 30 August 2017. The defendants attended the mediation and were legally represented by their then solicitor, Mr Pegg. The defendants signed terms of settlement which, among other things, admitted the validity of the loan agreements and mortgages, including their enforceability, and agreed to have judgment entered against them in the proceeding for both the outstanding debt as well as for Capital to have possession of the Corio Property. In addition, the terms of the Settlement Agreement contained a warranty that the parties to this document received full legal advice about the terms of the document and they fully understand those terms, notwithstanding English may not be the first language of the defendants.
Ms Barrett submitted it is simply not enough for the defendants to claim they misunderstood what they were signing. They were represented by legal practitioners at the time the Settlement Agreement was entered into and it is not suggested that Capital was aware, or ought to have been aware, that whatever advice was provided to them was or might have been in some way deficient.
Ms Barrett also contended that the validity or otherwise of the underlying loans and mortgages is irrelevant as the defendants had the opportunity to defend those matters, which they then did before compromising those claims by entering into the Settlement Agreement.
As such, Ms Barrett contended that taken at its absolute highest, the evidence only vaguely hints at a potential claim of negligence against Mr Pegg, the defendant’s former solicitor, but even if that failure was demonstrated, this has no bearing on the rights of Capital to enforce the consent judgment.
Ms Barrett points to the delay in the making of the application. She states even if it was accepted that Capital ought to be held responsible for any alleged failure on the part of the defendants’ solicitor in explaining the nature and effect of the Settlement Agreement to them, by Mrs Kozina’s own admission, she nevertheless understood the effect of that document no later than around 2018. There is no evidence that the defendants took any steps whatsoever at that time to have the consent judgment set aside. Rather, they did nothing. Further, Ms Barrett points to the fact that the defendants appear to have taken no steps whatsoever in relation to the loans, the settlement and/or the consent judgment between the period of at least 2018 to 18 March 2022, when the solicitors for Capital wrote to them. Upon the plaintiff’s solicitor writing to them, the defendants purported, via their daughter, to seek additional time to pay the outstanding debt. When Capital refused to provide additional time, the defendants obtained the assistance of their current solicitors in September 2022, but took no further steps until approximately January 2023. There is no explanation as to the failure to take such steps, especially given that their current solicitors appear to have been retained for a period of at least four months at this point.
As to the prejudice flowing to Capital, Ms Barrett observed that, as agreed with the defendants, it has already withheld execution of the consent judgment for more than five years. During that time, interest continued to accrue on the debt at a rate of 11.95%. Mrs Kozina deposes that aside from a single payment, no further payments have ever been made by the defendants and it seems the defendants are unable to do so. As such, Capital will suffer prejudice in the form of being further deprived of its funds were a stay to be granted. Additional interest will accrue, inevitably increasing the amount of the debt owing and reducing any current existing equity in the Corio Property.
In the context of the application being for an injunction, Ms Barrett cited matters that were referred to on Capital’s behalf in the context of the application for a stay. She contended there is no serious question to be tried when one considers the factual scenario, i.e. a compromise was reached at the conclusion of a judicial mediation at which the defendants were represented by a solicitor.
The position being put on behalf of the defendants really amounts, at its highest, to a contention that the defendants may have a claim against their solicitor, Mr Pegg, by reason of his negligence in not satisfying himself through the use of an independent and competent interpreter that the defendants understood the nature of the obligations they were entering into under the terms of Settlement Agreement. As such, Ms Barrett contends no triable issue arises by reason of Capital’s conduct in entering into the Settlement Agreement, which culminated in the entry of the consent judgment. It was submitted that on an application of the relevant authorities, including Australian Broadcasting Corporation v O’Neill (‘ABC v O’Neill’),[10] the present circumstances do not demonstrate the existence of a prima facie case.
[10](2006) 227 CLR 57, 68–9 (Gleeson CJ and Crennan J), 81–7 (Gummow and Hayne JJ) (‘ABC v O’Neill’).
In ABC v O’Neill, the High Court held that the existence of a prima facie case is to be understood by reference to whether there is a serious question to be tried in respect of the plaintiff’s entitlements to relief, not whether it is more probable than not that the plaintiff will succeed at trial.[11] The sense in which the test is understood is that the plaintiff must ‘show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial’.[12]
[11]Ibid 82 [65] (Gummow and Hayne JJ).
[12]Ibid.
As to the factor of balance of convenience favouring the granting of an injunction, Ms Barrett observed that the balance of convenience requires a consideration of the relevant matters favouring or militating against the granting of an injunction and will necessarily involve a consideration of the strength of the plaintiff’s claim, assuming that a serious issue has been identified. The High Court observed that the Court must, in determining whether to grant an interlocutory injunction, take whichever course appears to carry the lower risk of injustice if it should turn out to have been wrong, in the sense of granting an injunction to a party who fails to establish his right at the trial, or in failing to grant an injunction to a party who succeeds at trial.[13]
[13]In ABC v O’Neill (n 10), the Heydon J referred to Films Rover International Ltd v Cannon Film Sales Ltd (1987) 1 WLR 670, 680 (Hoffmann J) (at 146 [248]), in which Hoffmann J said that ‘[a] fundamental principle is therefore that the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been “wrong” in the sense I have described.’
Ms Barrett contended that on the balance of convenience, the factors favouring the grant of injunction in these circumstances — their age and health and the hardship that would attend their eviction — are overwhelmed by the factor of the delay that has been described and the failure to take steps to set aside the judgment at a much earlier time, when Mrs Kozina became aware of its implications in 2018. The application could not have been made any later than it has been and there is no satisfactory explanation for this.
Ms Barrett submitted that the application should be dismissed.
Consideration
I consider that the defendants’ application, be it characterised as an injunction or an application for a stay under r 66.16 of the Rules, should be refused.
As to the application for an injunction, the starting point is that the defendants must demonstrate a prima facie case, that is, whether there is a serious question to be tried as to their entitlement to relief.
The factual background to the matter has been summarised above, but it is appropriate to recall its most prominent features. This proceeding was commenced in April 2017 following default under the relevant financial agreements entered into the previous year. The defendants defended that proceeding, filed defences, and were legally represented. Those defences contended that the transactions had not been explained to them at the time they were entered into and that the solicitor involved in witnessing the Documents, Mr Chung, was delinquent in adequately explaining them and engaging an interpreter in that process.
Mr Chung was joined as a third party by the defendants to the proceeding. There then ensued a judicial mediation at which the defendants were represented by a solicitor, Mr Pegg. The mediation culminated in the Settlement Agreement being struck, which provided for consent entry for judgment in a money sum, together with possession of the Corio Property. Those terms provided that the defendants could remain in occupation of the Corio Property for five years. Mr Pegg witnessed the defendants’ signatures to the Settlement Agreement. The Settlement Agreement also released Mr Chung from claims by the defendants and by Capital in return for money sum payments, which have been made.
On Mrs Kozina’s own evidence, she became aware of the effect of the Settlement Agreement approximately a year after it was entered into, but she took no steps to protect the defendants’ position by seeking to set the consent judgment aside at that point. Prior to the expiry of the five-year period, Capital’s solicitors wrote to the defendants, reminding them of the forthcoming expiry of stay, which was to occur in August 2022, but no steps were taken by the defendants to protect their position. It was only at the very latest point in the timeline, on the eve of the Sheriff’s execution of the warrant that this application was made. Even at this point, there is no extant application to set aside the consent judgment giving rise to the Warrant.
When analysed, the defendants’ complaint is, in essence, that their solicitor, Mr Pegg, failed to ensure they understood the impact of the Settlement Agreement at the mediation by not arranging for an independent interpreter in order that the implications of the Settlement Agreement could be explained to them. It is not suggested that Capital were in any way involved in such alleged delinquency. Rather, as Ms Barrett puts it, it would take the form of a claim in negligence against Mr Pegg.
When assessing the defendants’ position in the context of whether there is a serious question to be tried, I consider that their position to be forlorn and could not be described as having anything more than negligible prospects of success. An application made to set aside the consent judgment based on the evidence filed in this application does not have, in my view and adopting the formulation of the High Court in ABC v O’Neill, ‘a sufficient likelihood of success to justify … the preservation of the status quo pending trial’.[14]
[14]ABC v O’Neill (n 10) 82 [65] (Gummow and Hayne JJ).
As to the balance of convenience, the factors in the defendants’ favour are, as have been mentioned, their age, their ill health, and their lack of other accommodation. Undoubtedly hardship will attend execution on the consent judgment but that position has been known to Mrs Kozina for four years.
I accept Ms Barrett’s submissions concerning the delay on the defendants’ part to take steps to protect their position. Mrs Kozina has been aware from at least 2018 of Capital’s right to possession of the Corio Property under the terms of settlement, which matured in August 2022, but has chosen not to take any steps to address the situation.
As against this, Capital has the benefit of a consent judgment of the Court, both for possession and for a money sum. Under the terms of the Settlement Agreement, Capital agreed to postpone execution on its consent judgment for a period of five years and that period expired in August of last year.
I will not order an injunction restraining execution.
For much the same considerations, I will not order a stay pursuant to r 66.16 of the Rules. The Court has an inherent jurisdiction to stay execution and it is required to take into account all of the circumstances and is not bound by decisions on other sets of facts.
The starting point in the exercise of that discretion is that a party who obtains a judgment is entitled to have it enforced without delay.[15]The circumstances justifying a stay are those that go to the enforcement of the judgment and not to its validity or correctness. In Re S&D International Pty Ltd (in liq) (No 6),[16] Robson J stated that it is in those circumstances that the applicant bears the onus of establishing ‘special circumstances’ warranting the stay of the right to enforce the judgment.
[15]Parry (n 2) 244 (Malcolm CJ).
[16][2011] VSC 119, [130].
In these circumstances, the judgment was obtained by consent under the terms of a Settlement Agreement reached at a mediation at which the defendants were legally represented. As has perhaps been laboured, despite being aware, at the latest, of the effect of the Settlement Agreement in 2018, no steps at all have been taken until now to bring the current application. While it is clear that hardship is a prominent feature, I do not consider that that alone can constitute special circumstances warranting the stay of Capital’s right to enforce its consent judgment.
The second defendant’s application is dismissed with costs.
SCHEDULE OF PARTIES
| S CI 2017 01519 | |
| BETWEEN: | |
| CAPITAL SECURITIES XVI PTY LTD (ACN 601 867 654) | Plaintiff |
| - v - | |
| NIKO KOZINA | First Defendant |
| ANA KOZINA | Second Defendant |
| - and - | |
| ANTONY CHUNG | Third Party |
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