Classic Finance Pty Ltd v Cielo Publishing

[2017] VCC 636

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMERCIAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-16-00117

Classic Finance Pty Ltd	Plaintiff
v
Cielo Publishing & Ors	Defendant

---

JUDGE:	Woodward
WHERE HELD:	Melbourne
DATE OF HEARING:	24 May 2017
DATE OF RULING:	24 May 2017
CASE MAY BE CITED AS:	Classic Finance Pty Ltd v Cielo Publishing & Ors
MEDIUM NEUTRAL CITATION:	[2017] VCC 636

REASONS FOR RULING
---

Subject:  PRACTICE AND PROCEDURE – Stay of judgment

Catchwords:             Stay of judgment where appeal foreshadowed – whether threshold for allowing stay under County Court Civil Procedure Rules (2008) r 66.16 is satisfied – presumption that Judgment Creditor be entitled to judgment - Court not satisfied on submissions that a stay be given.

Legislation Cited:     County Court Civil Procedure Rules 2008 (Vic)

Cases Cited:Joskovitz v Bonnick [1964] VR 654, Holmark Constructions Pty Ltd v Tsoukaris and Another (1986) 12 NSWLR 181, Talston Pty Ltd v Daisley [2004] VSC 23, Maher v Commonwealth Bank of Australia [2008] VSCA 122

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Koroneos Lawyers
For the Third Defendant For the Fourth Defendant	In Person In Person

HIS HONOUR:

1       By a summons dated 16 May 2017, the third and fourth defendant’s (respectively) Dimitri Vorontsov of and Natalya Vorontsov seek “a stay of the orders and the warrant until filing an appeal to Court of Appeal and application being decided by Court of Appeal”. The application is supported by an affidavit sworn by the third defendant Dimitri Vorontsov on 17 May 2017 in which Mr Vorontsov relevantly deposes that he is seeking a stay on the orders and the warrant until “filing an appeal to the Court of Appeal and application being decided by Court of Appeal. I need this stay on the orders and the warrant to have enough time to find a barrister to represent appeal”.

2       Mr Vorontsov confirmed in the course of submissions that the proposed appeal is an appeal only of the orders of Her Honour Judge Marks made 15 May 2017 as set out below.  He also confirmed that the appeal of those orders is yet to be filed with the Court of Appeal.

3 Despite the fact that, on the face of the materials, the application appears to be an application for stay of execution pending appeal, I am treating the application as an application brought pursuant to r 66.16 of the County Court Civil Procedure Rules 2008 (Vic) (“the Rules”), not r 64.39 (which applies to this Court by operation of r 64A.02). I do so for two reasons. First, as indicated above, no appeal has yet been filed. Second, even if an appeal had been filed, power to order a stay under r 64.39 is reserved to the Court of Appeal.

4       Judgment was entered against the third and fourth defendants for $243,309.18 on 9 May 2016. This is the latest in a series of attempts by the third and fourth defendants since then, to delay or deny to the plaintiff the fruits of that judgment.

5       The history of the third and fourth defendants' attempts to obtain an order that they pay the judgment debt ordered against them in instalments is set out in "Other Matters" in the order made on 15 February 2017 by Judicial Registrar Burchell.  The Judicial Registrar made orders that day dismissing the latest application for payment by instalments and ordering that the judgement debtors pay the judgment creditors costs of the application on an indemnity basis.

6       The third and fourth defendants filed a notice under rule 84.02 seeking a review of the decision of Judicial Registrar Burchell. It was served on the plaintiff by 12 May 2017 (after the 14 days allowed in the rule), and heard and determined by Her Honour Judge Marks on 15 May 2017.  On that date, Her Honour ordered as follows:

a.    The time for the third and fourth defendants to serve the application filed on 8 May 2017, to review the decision of Judicial Registrar Burchell made on 15 February 2017, be extended to 12 May 2017.

b.    The decision of Judicial Registrar Burchell made on 15 February 2017 is confirmed.

c.    The third and fourth defendants' application filed 8 May 2017 to review the decision of Judicial Registrar Burchell made on 15 February 2017 is dismissed.

d.    The third and fourth defendants pay the plaintiff’s costs of this application to be assessed by the Cost Court in default of agreement.

7       Against that background I turn to the present application.

8       The discretion of the court under our 66.16 to stay execution of a judgment is a wide one. The court is required to take into account all the circumstances of the case.  It is not bound by decisions on other sets of facts: Joskovitz v Bonnick [1964] VR 654 at [656]. The court below may stay execution on the ground of a stated intention of a party to appeal: Holmark Constructions Pty Ltd v Tsoukaris and Another (1986) 12 NSWLR 181 at 182, line E-F. However, the starting point should be that a party that obtains a judgment is entitled to have it enforced without delay. The circumstances that will justify a stay are special circumstances which go to the enforcement of the judgment, and not those which go to its validity or correctness.

9       In Talston Pty Ltd v Daisley [2004] VSC 23 at [10] Kaye J stated:

Rule 66.16 of the Rules of the Supreme Court is general in its expression and simply states that the court may stay execution of judgment. The authorities recognise that under that rule the court has a wide discretion: see, for example, Joskovitz v Bonnick. It is well recognised that the circumstances which relate to the issue of whether or not a stay should go must be matters relating to the enforcement of the order and must not be matters that go to the correctness of the order: see, for example State Bank v Parry (citation omitted).

His Honour also stated (at [17]):

It is well established that prima facie a plaintiff who obtains successfully a judgment from this court is entitled to enforce it. Otherwise the process of this court would be irrelevant to the citizens of this State which came before it. The onus does lie on the defendant to satisfy the court, by proper material, that the defendant ought to be granted the indulgence of the stay to enable her to satisfy the rights of the plaintiff without prejudice to the plaintiff and without undue delay.

10      In the course of his submissions, Mr Vorontsov spoke of:

a.  adverse health effects being suffered by him as a result of having to fight the plaintiff in this and other proceedings;

b.  the conduct of the plaintiff in its dealings with the defendants, which he asserted led to the failure the defendants’ business and resulted in 15 full-time employees losing their jobs;

c.   the proceedings he has commenced in the Supreme Court of Victoria seeking damages from (among others) the plaintiff in respect of that conduct;

d.  matters that he alleged supported a conclusion that the original judgment in default entered on 9 May 2016 was both unfair and defective;

e.  the fact that his financial position has improved and he is now in a position to pay the judgment by instalments; and

f.    his expectation that Her Honour Judge Marks would not hear and determine the application for review of the decision of Judicial Registrar Burchell on 15 May 2017, but would instead fix a date for the hearing of that matter so that he had time to file further material and properly argue the application.

11      All of the matters raised by Mr Vorontsov went to the validity or correctness of either the judgment in default entered on 16 May 2016 or the orders of Her Honour Judge Marks made 15 May 2017.  The cases dealing with applications of this kind make clear that these types of matters are not among the circumstances which relate to the issue of whether or not a stay should be granted. The only relevant matter raised by Mr Vorontsov that went to the enforcement of the orders was his stated intention to file an appeal with the Court of Appeal.

12 Even when an appeal is on foot, the general rule is that an appeal does not operate as a stay of execution unless it is otherwise ordered (r 64.35). An applicant for a stay under r 66.16 must show special or exceptional circumstances to take the case out of the general rule that an appeal does not operate as a stay (Maher v Commonwealth Bank of Australia [2008] VSCA 122 at [22]) (“Maher”). Special circumstances will exist where, for whatever reason, there is a real risk that it will not be possible for a successful applicant to be restored substantially to his former position if the judgment against him is executed (Maher at [25]).

13      In this case, the most that a successful appeal from the orders of Her Honour Judge Marks could achieve is to convert a lump sum judgment into a judgment for payment by instalments.  In those circumstances, on the material before me, I have been unable to identify any sustainable ground for an argument that the third and fourth defendant will suffer irreparable harm as a result of the judgment in its current form being enforced pending the hearing and determination of the foreshadowed appeal.  Accordingly, in my view, special circumstances of the kind required to justify a stay have not been established by the third and fourth defendants and their application should be dismissed, with costs.

- - -

Certificate

I certify that these 5 pages are a true copy of the reasons for decision of His Honour Judge Woodward delivered on 24 May 2017.

Dated:      24 May 2017

Simon Bobko

Associate to His Honour Judge Woodward