Dimitriou v Pineview Property Holdings Pty Ltd

FEDERAL COURT OF AUSTRALIA

Dimitriou v Pineview Property Holdings Pty Ltd [2019] FCA 2123

File number:

NSD 1600 of 2019

Judge:

MARKOVIC J

Date of judgment:

10 December 2019

Catchwords:

PRACTICE AND PROCEDURE – application for stay of proceedings – where respondent conceded that appellant had arguable ground of appeal – whether balance of convenience favours stay – application dismissed

PRACTICE AND PROCEDURE – application for security for costs of appeal proceeding – application allowed

Legislation:

Federal Court of Australia Act 1976 (Cth) s 56

Federal Court Rules 2011 (Cth) rr 36.08, 36.09

Cases cited:

Endresz v Australian Securities and Investments Commission [2014] FCA 1139

Neptune Hospitality Pty Ltd v Ozmen Entertainment Pty Ltd [2019] FCA 1734

Date of hearing:

10 December 2019

Registry:

New South Wales

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Category:

Catchwords

Number of paragraphs:

37

Counsel for the Appellant:

Ms M Castle

Counsel for the Respondent:

Mr D Allen

Solicitor for the Appellant:

Adelsteins Solicitors

Solicitor for the Respondent:

Kekatos Lawyers

ORDERS

NSD 1600 of 2019

BETWEEN:

GEORGE DIMITRIOU

Appellant

AND:

PINEVIEW PROPERTY HOLDINGS PTY LTD ACN 155 051 157

Respondent

JUDGE:	MARKOVIC J
DATE OF ORDER:	10 DECEMBER 2019

THE COURT ORDERS THAT:

1.By 7 January 2020 the appellant is to provide the respondent security for its costs for the appeal in the sum $45,000, failing which the proceeding is to be stayed.

2.The security referred to in Order 1 is to be provided by payment into Court, provision of an irrevocable bank guarantee from an Australian trading bank or by payment into an interest bearing deposit account to be established by the Court.

3.The appellant’s application for a stay of the appeal made in paras 2, 3 and 4 of its amended notice of appeal filed on 27 November 2019 is dismissed.

4.The appellant is to pay the respondent’s costs of the application for a stay of the appeal and of the application for security for the respondent’s costs.

5.The respondent’s interlocutory application filed on 21 November 2019 is otherwise dismissed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)

MARKOVIC J:

1. There are two applications before me. The first filed by the appellant, Mr Dimitriou, is an application for a stay “of all proceedings under a sequestration order of the whole of [his estate] made on 30 August 2019” and “an order to stay the execution of the sequestration of the whole of [his estate] made on 30 August 2019 … until the appeal is heard and determined”. That application is made under r 36.08 of the Federal Court Rules 2011 (Cth) (Rules).  The second application is made by the respondent, Pineview Property Holdings Pty Ltd (Pineview). Relevantly, Pineview seeks an order pursuant to r 36.09 of the Rules that Mr Dimitriou provide security for its costs of the appeal in the sum of $96,800.

2. I will…