Fabuliving Pty Ltd v Lucisano
[2021] VSC 267
•14 MAY 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST
S ECI 2019 05345
| FABULIVING PTY LTD & ANOR | Plaintiffs |
| v | |
| FRANCESCO LUCISANO | Defendant |
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JUDGE: | MACAULAY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 MAY 2021 |
DATE OF JUDGMENT: | 14 MAY 2021 |
CASE MAY BE CITED AS: | Fabuliving Pty Ltd & Anor v Lucisano |
MEDIUM NEUTRAL CITATION: | [2021] VSC 267 |
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CIVIL PROCEDURE – Stay of enforcement of judgment pending appeal – Appeal from decision of a Judicial Registrar – Whether arguable ground for appeal – Rules 84.12, 66.03 and 66.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Robinson Gill Lawyers | |
| For the Defendant | Self-represented |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
Background......................................................................................................................................... 2
Should a stay be granted?................................................................................................................. 3
Orders................................................................................................................................................... 6
HIS HONOUR:
Introduction
The question in this proceeding is whether the defendant has an arguable ground of appeal to support the grant of a stay of execution of a judgment pending appeal.
The defendant has appealed an order of a Judicial Registrar made 2 February 2021, namely that the ’plaintiffs recover possession of land’ at 108/802 Elgar Road, Doncaster, Victoria (the ‘Property’). Pursuant to that order, the plaintiffs obtained a warrant for possession which the Sheriff proposes to execute. On 11 May 2021, the Sheriff delivered to the defendant a Final Notice to Vacate Property requiring the defendant to vacate the Property by 14 May 2021 (today’s date). That prompted the defendant to file a summons returnable to the Judge in the Practice Court seeking an order that the Judicial Registrar’s order and the execution of the warrant be stayed until the hearing and determination of the appeal.
Rule 84.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’) provides for appeals from a determination made by a judicial registrar to the trial division of the Court. Rule 84.12 provides:
Except so far as the Court otherwise orders, an appeal under Rule 84.05 shall not operate as a stay of execution or of proceedings under the determination by the judicial registrar.
That rule is in the same terms as Rule 64.39 governing the power to order a stay pending an appeal to the Court of Appeal and I consider that the same principles regulate the discretion to order a stay under Rule 84.05 as those that apply to Rule 64.39. Relevantly -
(a) it is not necessary for the grant of a stay that special or exceptional circumstances should be made out. It is sufficient that the applicant for the stay demonstrates a reason or an appropriate case to warrant the exercise of the discretion in his or her favour;
(b) in exercising the discretion the Court will weigh the balance of convenience and the competing rights of the successful party and the party appealing; and
(c) even though the Court will generally not speculate upon the appellants prospects of success the Court will nonetheless need to make some preliminary assessment about whether there is an arguable ground of appeal and the appellant cannot expect a stay to be granted without showing that there is one.
Background
On 26 November 2019, the plaintiffs commenced an action for the recovery of the Property pursuant to Order 53 of the Rules. A Judicial Registrar granted the plaintiff’s application to recover possession on the assumption that Order 53 was an available procedure.
On 16 June 2020, Kennedy J decided, on an appeal, that Order 53 was not an available procedure for recovering possession of the Property, set aside the Judicial Registrar’s orders and ordered that the proceeding continue as if commenced by writ. The writ and statement of claim filed thereafter sought relief by way of an order that ’the plaintiffs recover possession of the land’. Her Honour was to hear the trial of the proceeding, as so continued, on 18 August 2020. On that date, orders were made by consent that:
1.The defendant is to vacate the premises at 108/802 Elgar Road, Doncaster, on or before 18 October 2020.
2.Between 18 August 2020 and 18 October 2020, inclusive, the defendant is not required to pay any rental or licence fee in respect of his occupation at the property at 108/802 Elgar Road, Doncaster.
3.The defendant’s summons dated 17 August 2020 (filed in court) is dismissed with no order as to costs.
4.The respondent (Fabuliving Pty Ltd) is to pay the appellant’s (Francesco Lucisano’s) costs of the appeal in this proceeding from the orders of Judicial Registrar Caporale made on 20 January 2020 and heard by her Honour Justice Kennedy on 16 June 2020.
5.The respondent (Fabuliving Pty Ltd) is granted an indemnity certificate pursuant to section 4 of the Appeals Costs Act 1998 in respect of the costs of the said appeal.
6. The proceeding is otherwise dismissed with no order as to costs.
Notwithstanding the orders made by consent, the defendant failed to vacate the premises as provided in paragraph 1 of that order.
By summons filed 25 January 2021, the plaintiffs applied for an order that they recover possession of the Property and that the defendant pay the costs of the application. The summons was supported by an affidavit sworn by the solicitor for the plaintiffs producing the order made by her Honour on 18 August 2020 and verifying that, at the date of swearing the affidavit, the defendant had failed or refused to vacate the Property and was still occupying it, preventing the second plaintiff from renting it out for the purpose of earning income. By order of a Judge the application was referred to Judicial Registrar Keith to be heard and determined. Judicial Registrar Keith made the order on 2 February 2021 referred to above. On 15 February 2021, the defendant filed a notice of appeal from the Judicial Registrar’s decision, in particular the order granting the plaintiffs recovery of possession of the Property. The defendant’s appeal is yet to be heard.
The plaintiffs filed a warrant of possession on 4 February 2021 directing the Sheriff to enter the Property to enable the plaintiffs to recover possession of it. As stated, on 11 May 2021 the Sheriff served the defendant a Final Notice to Vacate Property.
Should a stay be granted?
It appears from the defendant’s (unsworn) affidavit dated 12 May 2021 that the ground of his appeal will be that the plaintiffs have not paid the costs that were ordered to be paid under paragraph 4 of the order made on 18 August 2020. Here, the defendant has no prospect of success. The order that he vacate possession of the premises is not contingent upon the payment of costs nor is the payment of costs contingent upon him vacating the premises. They are completely independent obligations. He has an obligation to vacate the premises which is enforceable. The plaintiffs have an obligation to pay the costs. That too is enforceable. Each is enforceable independently and separately.
However, the defendant may have an arguable ground of appeal which he has not identified. I do not think I can overlook it even though he has not at this stage articulated it. It is this. Rule 66.03 of the Rules says that a judgment for possession of land may be enforced, amongst other things, by a warrant of possession. Rule 66.05 applies where a judgment requires a person to do an act within the time fixed in the judgment or by order and the person refuses or neglects to do the act within that time. Where that rule applies, in connection with an individual, a judgment may be enforced by committal of the person and sequestration of the property of the person bound.
The order to which the defendant consented on 18 August 2020 seemingly was of the latter kind: that is, it was an order that he do an act, namely vacate the premises, within a time fixed by the order. It was not an order that the plaintiffs have or recover possession of the land. Accordingly, it is arguable that the power to enforce the judgment by warrant of possession was not available because the judgment was not of a kind described in Rule 66.03. Instead, it was a judgment of the kind described by Rule 66.05 for which a different suite of enforcement powers were available.
On 2 February 2021, upon a contested application, the Judicial Registrar ordered that the plaintiffs recover possession of the land. He did not do so after a trial but on application by summons based on the existence of the judgment given by consent on 18 August 2020. The Judicial Registrar was clearly alive to the fact that a judgment that the defendant vacate the land may not support warrant of possession, but an order for recovery of possession would do so. In ex tempore oral reasons given on the day he said:
In this matter, the plaintiffs have brought an application seeking an order in the terms that they recover possession of the land. The order made in August 2020 by Justice Kennedy was expressed in terms that the defendant would vacate the premises.
For procedural reasons, there is some doubt as to whether the August 2020 order would support the issue of a warrant, but the outcome of the proceedings in August 2020 were clearly on the basis that the plaintiffs were entailed to recover possession and the wording of the order should not, in my view, be used as a procedural hurdle preventing the plaintiffs from enforcing the benefit of the order they obtained at that time.
In later published written reasons the Judicial Registrar expanded on this. He referred to the commentary in Civil Procedure Victoria[1] under Rule 66.03 and the distinction sometimes drawn between an order for recovery of possession and an order that a person ‘give possession’, stating that, in his view, that there was no distinction. I take it that he equated an order that a person ‘vacate land’ with an order that the person ‘give possession of the land’ which, in turn, was equivalent to an order that another person ‘recover possession’. He then explained his reasons for ordering recovery of possession in these terms:
18 In my view, there is no reason to think the Court is not empowered to make an order that the plaintiffs recover possession in the circumstances where the defendant has consented to an order that he would vacate the premises. The Court is not, in such circumstances, limited to enforcement by committal and sequestration in accordance with Rule 66.05.
19 Any alternative requiring the plaintiffs to commence new proceedings would be contrary to the obligations imposed by the Civil Procedure Act 2010 (“the Act”). To refuse the application by the plaintiffs would have incurred unnecessary delay and created unwarranted duplication of legal proceedings.
20 The orders I made on the application by the plaintiffs were to put into effect the orders of the Court, to which the defendant had consented in August 2020.
[1]John K Arthur, David L. Bailey & Neil J Williams, ‘Civil Procedure Victoria’.
It may be said that the effect of the Judicial Registrar’s order was to amend an existing judgment or to substitute one judgment for another, otherwise than by use of the slip rule or with the consent of the parties. It is not clear to me what power or jurisdiction the Judicial Registrar was purporting to use in doing so. The Judicial Registrar may have been justified in doing so but, then again, arguably he was not. It is not for me at this stage to resolve the point. It is sufficient for present purposes to observe that, in my opinion, the defendant has an arguable ground of appeal.
In my view a stay should be granted. It is possible that the Judicial Registrar had no power to make the order he made; that the pre-existing order that the defendant vacate the Property by a given time would not have supported a warrant of possession; that the warrant of possession which the Sheriff proposes to execute is invalid; and, if the warrant is executed before the appeal, the appeal will be rendered nugatory. Against that consequence is the ongoing financial consequence of delay to a landlord that wishes to re-let the Property for commercial purposes.
The appeal can be heard in a relatively short period. It turns on a short point. In my view a greater injustice is likely to follow if the stay is wrongly denied than if it is wrongly granted.
Orders
(a) Paragraph 1 of the order made by Judicial Registrar Keith on 2 February 2021 and the execution of the warrant of possession [W21010036390] issued on 4 February 2021 is stayed until the hearing and determination of the defendant’s notice of appeal filed 15 February 2021.
(b) The hearing of the defendant’s appeal is fixed for 10:30am on 25 May 2021 before the Judge in the Practice Court.
(c) By 4pm on 18 May 2021, the defendant file and serve written submissions in support of the appeal.
(d) By 4pm on 21 May 2021, the plaintiffs file and serve written submissions in opposition to the appeal.
(e) Costs of and incidental to this application be costs in the appeal.
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