Foreign Language Publications v Assaf
[2001] NSWSC 788
•23 August 2001
CITATION: Foreign Language Publications v Assaf [2001] NSWSC 788 CURRENT JURISDICTION: Equity Division FILE NUMBER(S): SC 2797/01 HEARING DATE(S): 23 August 2001 JUDGMENT DATE:
23 August 2001PARTIES :
Foreign Language Publications Pty Ltd
(Plaintiff)
v
Joseph Assaf
(Defendant)JUDGMENT OF: Acting Master Berecry
COUNSEL : P: Mr G Segal
D: Ms K ReesSOLICITORS: P: Tony Lazaropoulos, Solicitor
D: Mallesons Stephen Jaques, SolicitorsCATCHWORDS: Interlocutory Process - application to set aside orders - statutory demand - whether commercial embarrassment CASES CITED: Eagle Homes Pty Ltd v LED Builders Pty Ltd [1999] NSWSC 1049 DECISION: See paragraph 16 for orders
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISIONTHURSDAY, 23 AUGUST 2001ACTING MASTER BERECRY
2797/01 - FOREIGN LANGUAGE PUBLICATIONS PTY LTD
v JOSEPH ASSAFJUDGMENT
1 MASTER: The application before the Court is an Interlocutory Process to set aside orders which I made on 16 July 2001. The orders that I made on that occasion were that the Originating Process be dismissed and the plaintiff pay the defendant's costs. The Originating Process sought an order that the statutory demand issued by the defendant against the plaintiff be set aside.
2 The background to the proceedings is set out in the chronologies. Very briefly, these proceedings have their origin in defamation proceedings which were in issue before Carruthers AJ. The defendant in these proceedings, Joseph Assaf ("Assaf"), was a plaintiff in those proceedings before Carruthers AJ. As I understand the history of the matter, the jury found that Assaf and others had been defamed by publications by the plaintiff in these proceedings, Foreign Language Publications Pty Ltd ("FLP").
3 The jury returned a verdict of just under $172,000. On 6 December 2000, judgment was entered in that amount. On 31 October 2000, an appeal was filed. There was, prior to the filing of the appeal, a stay granted by Carruthers AJ. Between late 2000 and May 2001, the matter had been before the Court on a number of occasions. Those proceedings had been listed before Kirby and Adams JJ, and Adams J varied the stay that had been given by Carruthers AJ. The stay was not varied on the first occasion before Adams J but, on 23 March 2001, he varied the stay, inter alia, by requiring FLP to make a payment of just over $637,000. That money was to be paid by 30 March 2001, a period of seven days after the making of the order.
4 FLP failed to comply with the order of Adams J. However, on 12 April 2001, it filed a notice of motion in the Court of Appeal seeking, inter alia, a stay of the orders of Adams J. On 30 April 2001, Beazley JA adjourned that application to 25 June 2001. A fortnight later, on 14 May 2001, Assaf served a statutory demand on FLP. The statutory demand is in the amount of $129,928.33. The proceedings in the Court of Appeal continued and ultimately a settlement was reached before Beazley JA on 25 June 2001. The evidence seems to suggest that part of the settlement incorporated the amount that was required under the statutory demand.
5 These proceedings were commenced on 28 May 2001. There had been two appearances prior to 16 July 2001. On that day, there was no appearance on behalf of FLP. These proceedings were dismissed and an order was made that the plaintiff pay the defendant's costs.
6 The application today seeks to set aside those orders and to re-agitate the dispute between the parties. However, if the orders made on 16 July 2001 are set aside, as I understand it, the application is not to be argued substantively but it is sought to bring these proceedings into conformity with the settlement in the Court of Appeal to avoid any commercial embarrassment that FLP may suffer because of the statutory demand.
7 I have been referred to a number of cases and it seems to me that it is trite law that, unless the Court orders a stay of execution on the judgment or order, the party who has obtained the judgment or order is perfectly entitled to execute on that judgment or order.
8 On the face of the main factual points in these proceedings, it is very hard to go beyond what was said by Hodgson CJ in Eq in Eagle Homes Pty Ltd v LED Builders Pty Ltd [1999] NSWSC 1049 and the orders that he made in those proceedings. I will not quote from his Honour's judgment because Ms Rees, counsel for Assaf, has already done that, but there is another aspect to these proceedings which goes to the question of costs and what the Court should do in relation to costs.
9 I do not propose to make orders in accordance with the Interlocutory Process upon which Mr Segal, counsel for FLP, has been briefed to appear. It seems to me that no utility is going to be served by the setting aside of the orders in relation to the dismissing of the Originating Process. The amount under demand, I am told from the Bar table, has in fact been paid. There would be no utility in setting aside the orders on that basis.
10 So far as commercial embarrassment is concerned, it would seem to me that the reality of the situation is that mercantile agents and various other groups, through inspection of Court records, would be aware of these proceedings, regardless of what the outcome is, so that information is in the public domain in any event.
11 The difficulty that I have is in relation to the question of costs. It is clear that, by late March of this year, there was a considerable debate and dispute about the orders that Adams J had made and, more particularly, the variation that his Honour had made to the existing stay. The amount that he required to be paid, at that stage, was increased almost four times. The money was to be paid within seven days. It is perhaps understandable that a party, confronted with such an enormous increase, would go directly to the Court of Appeal to try and have it overturned. However, it took FLP over a fortnight to bring an application in the Court of Appeal. Nevertheless, by 30 April 2001, the matter was before a Judge of the Court of Appeal. On that day, the matter was not resolved, neither by agreement nor by a determination of the Court. Beazley JA stood the matter over to 25 June 2001.
12 It must have been clear in everybody's mind that, by 30 April 2001, there was a contentious issue to be determined by a Judge of the Court of Appeal. Notwithstanding that and having regard to the rights that Assaf has in relation to the verdict that he had received back in October 2000, on 14 May 2001, he issued a statutory demand.
13 That perhaps raises a number of matters, such as, whether in the circumstances that was an abuse of process, whether he was premature or whether there was some ulterior motive by Assaf to thwart the continuation of the appeal.
14 Counsel for Assaf submits that there was no stay in place or, more accurately in relation to the stay that was in place, that the conditions of that stay had not been complied with. Assaf was, therefore, entitled to issue a statutory demand. However, in doing that, in the circumstances, it seems to me that it had the potential to increase, not only the number of matters to be litigated in this Court, but also to increase costs unnecessarily.
15 I do not consider that I can make an order which merely varies part of the orders that I made on the last occasion allowing the rest of it to stand. I consider that there should be some adjustment made because, whilst Assaf may be entitled to take the steps that he did, being fully aware of the contentious nature of the matters before the Court of Appeal, it would have been, in my opinion, more appropriate to withhold the service of the demand until, at least, after 25 June 2001. That did not happen.
16 The orders I propose to make are: I decline to make an order in accordance with paragraph 1 of the Interlocutory Process filed on 9 August 2001. So far as the costs of that Process are concerned, Mr Segal has conceded that the costs of 16 July 2001 and of today are costs that, in all probability, should be borne by his client. In my view, the more appropriate order would be that each party pay their own costs of that Process, and that is the order I make.
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