CFI Rentals Pty Ltd v Roussos - [2018] QDC 141

DISTRICT COURT OF QUEENSLAND

CITATION:

CFI Rentals Pty Ltd v Roussos & Anor [2018] QDC 141

PARTIES:

CFI RENTALS PTY LTD
(applicant)

v

MICHAEL IVON ROUSSOS
(first respondent)

and

JULIA KATHERINE GARDINER
(second respondent)

FILE NO/S:

BD4837/16

DIVISION:

Civil

PROCEEDING:

Civil Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

3 August 2018

DELIVERED AT:

Brisbane

HEARING DATE:

30 July 2018

JUDGE:

Williamson QC DCJ

ORDER:

I will hear from the parties as to the terms of the orders.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS – JUDGMENTS AND ORDERS – ACTIONS ON JUDGMENTS –GENERALLY – where application for stay of proceedings under Uniform Civil Procedure Rules 1999 (Qld) r 761(2) –whether good arguable grounds of appeal – whether applicants disadvantaged if stay not granted – whether competing disadvantage to respondent outweighs disadvantage to applicants.

COUNSEL:

Mr L Copley for the applicants/respondents

Mr D Keane for the respondent/applicant

SOLICITORS:

Shand Taylor Lawyers for the applicants/respondents
SLF Lawyers for the respondent/applicant

Introduction

On 29 June 2018 the Court declared that CFI Rentals Pty Ltd has an equitable charge over Mr Roussos’ interest in two properties under a signed secured guarantee. Ancillary orders were also made appointing a Statutory Trustee under section 38 of the Property Law Act1974 (Qld). Mr Roussos and Ms Gardiner have appealed against the orders of 29 June 2018. Their appeal is yet to be heard and determined.

Mr Roussos and Ms Gardiner seek a stay of the order of 29 June 2018. Further, or in the alternative, they seek:

(a) an order that an account be taken as between CFI Rentals Pty Ltd and Mr Roussos;

(b) an injunction restraining the Statutory Trustees from selling the properties the subject of the order of 29 June 2018; and

(c) an order setting aside the order of 29 June 2018.

For the reasons that follow, I am persuaded that this is an appropriate case to grant a stay, subject to compliance with a condition requiring the payment of an identified sum of money into Court. Given I will grant the primary relief sought, it is unnecessary for me to consider the alternative position advanced on behalf of Mr Roussos and Ms Gardiner.

Rule 761 of the UCPR and relevant principles

The primary relief sought is a stay under rule 761(2) of the Uniform Civil Procedure Rules 1999 (Qld). To succeed, Mr Roussos and Ms Gardiner must show there is a good reason for the stay to be granted, and it is an appropriate case in which to grant the stay[1]. It was common ground that the factors relevant to the determination of whether a case is an appropriate one to grant a stay are:
[1]Elphick v MMI General Insurance Limited & Anor [2002] QCA 347 [8].

(a) whether there is a good arguable case on appeal;

(b) whether the applicant will be disadvantaged if a stay is not ordered; and

(c) whether the competing disadvantage to the respondent should the stay be granted outweighs the disadvantage suffered by the applicant if the…

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: [2018] QDC 141
Decision Date: 3 August 2018

CaseChat Overview and Summary

In the case of CFI Rentals Pty Ltd v Roussos, the dispute centred around an application for a stay of proceedings under the Uniform Civil Procedure Rules 1999 (Qld) rule 761(2). The plaintiff, CFI Rentals, sought to enforce a judgment obtained in the Queensland District Court against the defendant, Roussos. The defendant argued that the enforcement of the judgment would cause him significant hardship and sought a stay of the proceedings. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The primary legal issue before the tribunal was whether the applicants had established good arguable grounds of appeal, whether the applicants would be disadvantaged if the stay was not granted, and whether there was a competing disadvantage to the respondent that outweighed the disadvantage to the applicants. The tribunal considered the nature of the judgment, the financial circumstances of the parties, and the impact of enforcing the judgment on the defendant.

The tribunal found that the applicants had demonstrated good arguable grounds of appeal, primarily concerning the assessment of costs and interest in the original judgment. Additionally, the tribunal determined that the applicants would be disadvantaged if the stay was not granted, as the enforcement of the judgment would result in significant financial hardship for the defendant. However, the tribunal also considered the competing disadvantage to the applicant if the stay was granted, which would be a delay in the enforcement of the judgment. Ultimately, the tribunal concluded that the disadvantage to the defendant outweighed the disadvantage to the applicant, and a stay of the proceedings was appropriate.

The tribunal ordered that the proceedings be stayed pending the outcome of the appeal and directed the parties to provide submissions on the terms of the orders.

Orders

Orders of the court

I will hear from the parties as to the terms of the orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	CFI Rentals Pty Ltd v Roussos & Anor [2018] QDC 141
PARTIES:	CFI RENTALS PTY LTD (applicant) v MICHAEL IVON ROUSSOS (first respondent) and JULIA KATHERINE GARDINER (second respondent)
FILE NO/S:	BD4837/16
DIVISION:	Civil
PROCEEDING:	Civil Application
ORIGINATING COURT:	Brisbane
DELIVERED ON:	3 August 2018
DELIVERED AT:	Brisbane
HEARING DATE:	30 July 2018
JUDGE:	Williamson QC DCJ
ORDER:	I will hear from the parties as to the terms of the orders.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS – JUDGMENTS AND ORDERS – ACTIONS ON JUDGMENTS –GENERALLY – where application for stay of proceedings under Uniform Civil Procedure Rules 1999 (Qld) r 761(2) –whether good arguable grounds of appeal – whether applicants disadvantaged if stay not granted – whether competing disadvantage to respondent outweighs disadvantage to applicants.
COUNSEL:	Mr L Copley for the applicants/respondents Mr D Keane for the respondent/applicant
SOLICITORS:	Shand Taylor Lawyers for the applicants/respondents SLF Lawyers for the respondent/applicant