De Rucci International Pty Ltd v Zhu

[2020] NSWSC 1927

Supreme Court

New South Wales

Medium Neutral Citation:

De Rucci International Pty Ltd v Zhu [2020] NSWSC 1927

Hearing dates:

30 December 2020

Date of orders:

30 December 2020

Decision date:

30 December 2020

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

(1) The motion is dismissed.

(2) The first defendant pay the plaintiff’s costs of the Notice of Motion.

Catchwords:

CIVIL PROCEDURE — Stay of proceedings — Pending appeal — Whether proper basis for a stay

Cases Cited:

Alexander v Cambridge Credit Corp Limited (1985) 2 NSWLR 685

De Rucci International Pty Limited v Zhu & Ors [2020] NSWSC 1720

Category:

Principal judgment

Parties:

De Rucci International Pty Ltd (Plaintiff)
Lucy Xiaoping Zhu (First Defendant)
HQ Living Pty Ltd (Second Defendant)
Singways (Moore Park) Pty Ltd (Third Defendant)
HQ Living (Moore Park) Pty Ltd (Fourth Defendant)
HQ Bedding Pty Ltd (Fifth Defendant)

Representation:

Solicitors:
Auyeung Hencent & Day Lawyers (Plaintiff)
First Defendant (self-represented)

File Number(s):

2019/293452

Publication restriction:

None

REVISED EX TEMPORE Judgment

1. Pursuant to a notice of motion filed on 29 December 2020, the first to fifth defendants seek orders in the nature of a stay of enforcement of the judgment of Rothman J of 2 December 2020. [1]

   1. De Rucci International Pty Limited v Zhu & Ors [2020] NSWSC 1720.

2. His Honour made a number of orders in favour of the plaintiff, De Rucci International Pty Limited, against the first to fifth defendants. In particular, his Honour entered judgment for the plaintiff on the statement of claim and ordered that the defendants pay damages in the sum of $230,473.90.

3. The first defendant is the principal and director of the second to fifth defendants. She operates a number of furniture companies. The plaintiff operates the De Rucci bedding and furniture brand. The dispute relates to a distribution agreement between the parties.

4. The first defendant represents herself and her companies, being the second to fifth defendants, on today’s application. Mr Vincent Zhu (no relation) is the solicitor for the plaintiff and appears on behalf of the plaintiff in response to the defendants’ application. The motion was only served today but he has obtained instructions to oppose the orders sought.

5. The first defendant relies on her own affidavit dated 29 December 2020. She says that she filed a notice of intention to appeal on 28 December 2020 and has 3 months to file the actual appeal. She says she was self-represented in the proceedings but is now seeking assistance from Legal Aid and intends to appeal.

6. She refers to the cross-claim against the plaintiff. She says that the basis of the appeal is that his Honour erred in not allowing her to file further evidence in support of her cross-claim. This issue is the dealt with in Rothman J’s judgment at [14]–[19].

7. She submits that his Honour's summary of the position relating to providing further evidence on the cross-claim is not accurate and that she has “a distinct recollection” of his Honour saying something to the effect that she would be allowed further time to file the further evidence and submissions. She says that she will be seeking the transcript to establish that position. The first defendant also says that she wishes to appeal because the judgment is not fair, particularly in relation to the cross-claim.

8. The plaintiff disputes the first defendant's recollection of what happened in the trial and disputes that there is any error in at [14]–[19] of the judgment.

9. As is apparent from those paragraphs of the judgment, both parties filed further evidence during the course of the hearing leading to the Court making what has been referred to as a guillotine order to the effect that the Court would not consider any additional materials sought to be filed after 7.30pm on 20 April 2020.

10. At [16], his Honour sets out the exchange with the first defendant. As his Honour says at [18]:

“[18] The Court seeks to accommodate self-represented litigants to the greatest extent possible, however, such indulgence is subject to the requirements of section 56 of the Civil Procedure Act and the Court’s obligation to facilitate the just, quick and cheap resolution of the real issues in proceedings.”

11. His Honour disregarded further aspects of the submissions filed on 28 April 2020 to which the plaintiff objected. It is apparent from [17] of his Honour’s judgment that the plaintiff contended that, to the extent those submissions purported to make an application or amend any pleading, such an application was opposed on the ground of prejudice and delay.

12. There is no rule that provides for a stay of enforcement of a judgment merely because a party may wish to appeal.

13. In this matter, the first defendant has filed a notice of intention to appeal on the last or second last day available. As she says, she now has another 3 months to consider whether she will appeal. She says that she wishes to obtain Legal Aid and will get a barrister to help her on the appeal.

14. The basis on which the first defendant might obtain Legal Aid is unclear, bearing in mind that she operates an apparently successful furniture business.

15. In her affidavit, she does depose to the financial difficulties which might arise if she is forced to pay the judgment. However, she also said during her oral submissions that part of the reason for the delay and urgency in bringing this application was that she had been in Queensland attending to business.

16. The principles that apply to an application such as this are well-known. Ordinarily, a party is entitled to the fruits of the judgment and entitled to take steps to enforce the judgment.

17. Whilst it is not necessary for a party to demonstrate special or exceptional circumstances, it is generally necessary that the party seeking a stay demonstrate that:

1. there is at least a reasonable basis or arguable basis for the appeal; and

2. if a stay is not granted the appeal may be rendered nugatory, in the sense that the result of the appeal might be futile because the successful appellant will not be able to recover any money paid pursuant to the original judgment; [2] and

3. there is a proper basis for a stay that will be fair to all parties.

   2. Alexander v Cambridge Credit Corp Limited (1985) 2 NSWLR 685.

18. The first defendant has not adduced any evidence that if a stay of enforcement is not granted an appeal would be futile. She has not adduced any evidence as to the financial position of the plaintiff or evidence which would support the submission which she makes, being that the plaintiff is a Chinese company and that in view of the current relationship and issues arising out of China that, in some way, this would mean that the plaintiff would not have the ability to repay any sums obtained in satisfaction of the judgment should the first to fifth defendants succeed on the appeal.

19. I do not have regard to the first defendant's general statements about matters relating to China at this time. Her views are not evidence.

20. Whilst I acknowledge that the first defendant is representing herself and, as Rothman J said, the Court should do its best to assist a self-represented person, I must do justice to both parties.

21. I am not satisfied that there is any reasonable prospect of her succeeding in the appeal which she apparently wishes to pursue.

22. The first defendant does not point to any evidence to support her propositions. She merely says that she has a recollection of his Honour saying something which would be inconsistent with his Honour's judgment. Further, she has not adduced any evidence which would support the proposition that if the judgment is paid she would not be able to recover the judgment sum from the plaintiff if successful on appeal.

23. In the circumstances, it is not appropriate that there be a stay of execution and the motion is dismissed.

24. The plaintiff seeks costs of the application. The first defendant submits that I would not order costs because the plaintiff did not give the first defendant notice of its intention to enforce the judgment and also that there was a delay in the filing of the motion, not through the first defendant’s fault and, further, that the first defendant served the motion as soon as she could.

25. None of those matters impact upon the appropriate costs order. Costs normally follow the event. The first defendant filed a motion. The plaintiff was represented by its solicitor. I order the first defendant pay the plaintiff’s costs of the motion.

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Endnotes

Decision last updated: 07 January 2021