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

1. 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.

1. 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.

1. 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

1. 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.

1. 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 on other sets of facts. 

The Court has a wide discretion, is required to take into account all the circumstances of the case and the discretion is not circumscribed by rigid rules.  The circumstances that will justify a stay of execution are special circumstances which go to the enforcement of the judgment.  Prima facie a successful party is entitled to the benefit of the judgment obtained and the presumption that the judgment is correct.  It is in those circumstance that the applicant bears the onus of establishing special circumstances warranting the stay of that right.

[2][2018] VSC 93, [22]–[25] (citations omitted).

1. The following principles in Maher v Commonwealth Bank of Australia[3] (‘Maher’) are applicable and I adopt them.

   [3][2008] VSCA 122.

In Cellante and Ors v G Kallis Industries Pty Ltd (‘Cellante’), Young CJ (with whom Brooking J agreed), cited with approval the observation of Mahoney JA (with whom Moffit P and Glass JA agreed) in Re Middle Harbour Investments Ltd (in liq) that:

… where an applicant for a stay has not demonstrated an appropriate case but has left the situation in the state of speculation or of mere argument, weight must be given to the fact that the judgment below has been in favour of the other party.

Young CJ concluded that 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.

…

In Cellante, Young CJ stated that special circumstances would ‘exist where for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed’.[4]

[4]Ibid [21], [22], [25] (citations omitted).

Submissions and Analysis

1. The plaintiff relies on the affidavits of Mr David Youl, Project Co-ordinator, and Mr Julius Chikwe, solicitor, deposed to this day.  Similar affidavits are filed in both the proceedings.

1. Mr Youl deposes that the plaintiff is the tenant of the properties in question and that they are used to house the plaintiff’s guests and staff, who will suffer hardship if they are evicted.

1. There is no evidence as to whether or not the plaintiff has other property in its possession.  There is no explanation as to what alternative accommodation options have been explored in respect of the plaintiff’s guests and staff.  There is simply an assertion that they are from overseas, it is their primary residence and they will suffer hardship if evicted.

1. The Chikwe affidavit is in the nature of written submissions as well making some factual assertions.  It is said that notices to vacate were not properly served.

1. Upon inquiry from the Court, the plaintiff is not prepared to pay the unpaid rent or give an undertaking it be paid.  The plaintiff is however prepared to pay rent for the period of the appeal in this Court.

1. An electronic copy of the order from the Tribunal dated 30 August 2019 in the Hodge proceeding was provided.  Importantly, there is no evidence before the Court of the order in the Jescal Nominees proceeding for which the stay is sought.  Nor are the written reasons of the Tribunal before the Court in respect of either proceeding.  There was no proper explanation of this. 

1. The transcript of the Tribunal proceedings are not before the Court and the Court was informed that was because it had been requested but not yet received and transcribed.  That evidence is accepted in respect of the transcript.

1. There is insufficient evidence before the Court to support the application.  No special circumstances have been established.

Conclusion

1. The applications are disallowed.

1. Further, I must record my concern at the manner in which this application has been conducted.  My concern is that the two solicitors who appeared to represent the plaintiff, and said they had corporate practising certificates, gave inconsistent explanations about Renaissance Man Pty Ltd and RM Legal Consultants.  Renaissance Man Pty Ltd appears as the contact on the notices of appeal.  No solicitor code is provided.  RM Legal Consultants appears on email correspondence exchanged with Registry.  On the application forms for the summons signed by Mr Raghavan, RM Legal Consultants is provided as the ‘firm name’.  I will make a referral to the Victorian Legal Services Board and Commissioner in respect of both solicitors, namely Mr Julius Chikwe and Mr Naveen Raghavan.

Orders

1. The applications made by summons this day are disallowed.

1. The plaintiff pay the defendants’ costs of, incidental to and occasioned by the plaintiff’s summons filed this day.