Efektiv Pty Ltd v Jescal Nominees - [2019] VSC 628

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 03967

EFEKTIV PTY LTD (ACN 625 719 566)	Plaintiff
v
JESCAL NOMINEES (ACN 006 550 349)	Defendant

- AND –

S ECI 2019 03965

EFEKTIV PTY LTD (ACN 625 719 566)	Plaintiff
v
KIM HODGE	Defendant

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	13 September 2019
DATE OF RULING:	13 September 2019 (given ex tempore, revised)
CASE MAY BE CITED AS:	Efektiv Pty Ltd v Jescal Nominees
MEDIUM NEUTRAL CITATION:	[2019] VSC 628

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PRACTICE AND PROCEDURE – Stay – Application for stay of VCAT possession orders – Whether special circumstances arise – Application refused – Maher v Commonwealth Bank of Australia [2008] VSCA 122 – Supreme Court (Miscellaneous Civil Proceedings) Rules 2008, r 4.04 – Supreme Court (General Civil Procedure) Rules 2015, r 66.16.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Chikwe and Mr N Raghavan
For the Defendant	Gadens

HER HONOUR:

Background

Applications for stays in two proceedings have been heard concurrently today. Both proceedings concern the same plaintiff, and both are appeals from decisions of the Victorian Civil and Administrative Tribunal (‘the Tribunal’). By summons filed this day, the plaintiff seeks to stay warrants of possession until the appeals to this Court have been heard. Stays are also sought on ‘monetary orders’. Costs are sought.

I will refer to one appeal proceeding, S ECI 2019 03965, as the ‘Hodge’ proceeding. I will refer to the other appeal proceeding, S E CI 2019 03967, as the ‘Jescal Nominees’ proceeding. Both concern appeals from the Residential Tenancies List of the Tribunal.

The proceeding commenced as an ex parte one at 2.15pm. The defendants’ solicitor was only given notice of the proceeding shortly beforehand, and arrived in Court part-way through the hearing. There was no proper explanation for the lack of notice given to the defendants of the applications. The application forms were received by the Court by email on the night of 12 September 2019.

Stay of execution – applicable law

Rule 4.04 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 provides that an appeal or application for leave to appeal from the Tribunal shall not operate as a stay of proceedings unless the Court otherwise orders. The authorities concerning stays under the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) are relevant.[1]
[1]Rules 66.16.

Derham AsJ set out the following principles in Abikhair v Ali, which I adopt.[2]

Pursuant to r 66.16 of the Rules and the inherent jurisdiction, the Court has a discretionary power to stay execution of a judgment, but only on grounds which are relevant to a stay of enforcement of proceedings. The jurisdiction does not extend to grounds which are matters of defence, which ought to have been raised in the proceeding itself. The Court is required to take into account all the circumstances of the case and is not bound by decisions…

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: [2019] VSC 628
Decision Date: 13 September 2019 (given ex tempore, revised)

CaseChat Overview and Summary

Efektiv Pty Ltd sought a stay of possession orders made by the Victorian Civil and Administrative Tribunal (VCAT) in relation to a property at Cheltenham. Jescal Nominees, the registered owner of the property, opposed the application. The Supreme Court was tasked with determining whether the applicant had demonstrated special circumstances warranting a stay of the VCAT orders.

The primary legal issue before the court was whether Efektiv had established special circumstances that would justify staying the possession orders issued by VCAT. This required an examination of the relevant case law and statutory provisions, including the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 and the Supreme Court (General Civil Procedure) Rules 2015. The court needed to consider whether Efektiv had shown that it had a strong arguable case on the merits and whether there were exceptional circumstances that warranted the stay.

In determining the application, the court considered the principles established in Maher v Commonwealth Bank of Australia. It found that Efektiv had not satisfied the threshold requirements for a stay, as it had not demonstrated a strong arguable case on the merits or exceptional circumstances. The court held that Efektiv had not provided sufficient evidence to support its claims and that the application was not in the interests of justice. Consequently, the application for a stay was refused.

The court did not make any further orders beyond refusing the stay. Efektiv's application was dismissed, and the possession orders issued by VCAT remained in effect. The decision underscored the importance of establishing both a strong arguable case and exceptional circumstances to obtain a stay of execution in similar proceedings.

Orders