Giurina v Greater Geelong City Council

[2022] VSC 396

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S ECI 2022 02430

ERMANNO GIURINA AS EXECUTOR OF THE ESTATE OF CAROLINA NACINOVICH (ALSO KNOWN AS LINA NACINOVICH)	Plaintiff
v
GREATER GEELONG CITY COUNCIL	Defendant

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JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 July 2020
DATE OF JUDGMENT:	14 July 2022
CASE MAY BE CITED AS:	Giurina v Greater Geelong City Council
MEDIUM NEUTRAL CITATION:	[2022] VSC 396

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INTERLOCUTORY INJUNCTION – No new point of principle - Application to restrain sheriff from selling property pursuant to warrant arising from costs awarded to defendant in other related proceedings – Disconnect between final relief sought in proceeding for damages and interim relief to preserve title to property – No serious question for trial demonstrated - No basis to maintain status quo pending determination of proceeding.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff
For the Defendant	Mr S Woolley of counsel	Hardwood Andrews

HIS HONOUR:

1. The plaintiff seeks an injunction to prevent the sale of a property at 120 Elizabeth Street, Geelong West (the property). The injunction is sought on an interlocutory basis.

1. The proceeding was commenced by writ dated 28 June 2022. In the proceeding, the plaintiff claimed damages and a declaration, on the basis of some 15 paragraphs of allegations of trespass. After receiving the defendant’s submissions, the plaintiff added a claim for injunctive relief by an amendment to the prayer for relief, but did not add any material allegations to the statement of claim showing any entitlement to that relief as pleaded.

1. Significantly, the injunctive relief sought is to restrain the Sheriff and the Sheriff’s Office of Victoria from enforcing two warrants. The background to the involvement of the Sheriff, which I will come to, is different to, although related in some senses, the material facts pleaded in the statement of claim.

1. Briefly, the plaintiff, Mr Ermanno Giurina, as executor of the estate of Carolina Nacinovich (also known as Lina Nacinovich), contended that the defendant, the Greater Geelong City Council (‘Council’), did not comply with a mandatory provision for service of an emergency order by it and, in consequence, the defendant’s entry onto and demolition of part of the premises upon that property was unlawful.

1. The defendant acknowledged that the emergency order it made on 9 September 2019 (BNO-2019-305) was not personally served on the plaintiff and therefore was not served in accordance with the Building Act 1993 (Vic), before the defendant undertook the relevant demolition work required by the emergency order. It was common ground that the order had been served by 30 September 2019.

1. The Council is the judgment creditor on whose behalf the Sheriff seeks to enforce the two warrants of seizure and sale issued by this court against the property. The Council is a judgment creditor by force of costs orders in its favour arising from other, related, proceedings (S EAPCI 2021 0044 Giurina v Greater Geelong City Council [2021] VSCA 318 and S CI 2021 02603 (Giurina v Greater Geelong City Council [2021] VSC 103). These proceedings were judicial review challenges in respect of the emergency orders and an appeal. Those proceedings were resolved in favour of the defendant with costs. Those costs orders entitled the defendant to recover the sum of $86,915.00 plus interest and fees from the plaintiff. It is those unsatisfied costs orders that are the subject of the warrants.

1. The plaintiff submitted that the court should exercise its jurisdiction under s 37(1) of the Supreme Court Act 1986 (Vic) on the grounds that it was just and convenient to restrain the defendant from selling the property pursuant to warrants by granting an interlocutory injunction, as a matter of principle, in order to preserve the subject matter of a dispute and to maintain the status quo pending the determination of all the parties’ rights inter se.

1. The plaintiff submitted that the serious question for trial was the consequences at law of the failure by the defendant to serve the relevant emergency order and to consider all other of his relevant rights when it enforced the emergency order.

1. The plaintiff alleged, by his statement of claim, that the relevant legal consequences are that the defendant is liable to pay him damages.

1. The plaintiff also contended that it is his intention to rebuild those parts of the premises that were demolished in order that the property may be used as a residence for himself and his family. He submitted that this proceeding becomes pointless and is rendered nugatory if an injunction were not granted because he can hardly rebuild if the property has been sold off under the warrants. Beyond his personal preferences, this intention is irrelevant to his action in trespass.

1. The plaintiff submitted that the balance of convenience favours the grant of the injunction because the greatest injustice will be suffered by him if the injunction is not granted and the property is sold. All that the defendant faces is the inconvenience of delay. Further, the plaintiff submitted that by reference to observations made by the Court of Appeal in related proceedings concerning the defendant’s non-compliance with the provisions of the Act, he has a strong case for relief, a factor which favours the grant of the injunction.

1. The plaintiff earlier sought to have the warrants cancelled or withdrawn. On that application the court declared that the plaintiff is the proprietor of the property and that the property is affected by the costs orders to which I have referred. For the purposes of s 52(2) of the Transfer of Land Act 1958 (Vic), the property is affected by the warrants. The court then dismissed the plaintiff’s application for cancellation or withdrawal of those warrants.[1]

   [1]See order of Matthews As J made 24 May 2022 in S ECI 2019 04286 (Giurina v Greater Geelong City Council & Anor).

1. The first hurdle facing the plaintiff on this application is that not only is this classically a case where damages are an adequate remedy and no basis for equitable intervention can be demonstrated, but there is no claim to injunctive relief properly brought in the proceeding. The plaintiff is not represented by legal practitioners and taking into account that the statement of claim could be further amended I will consider whether, having regard to all of the issues raised on the evidence on this application, the plaintiff could demonstrate that there is a prima facie case for preservation of the status quo.

1. How this requirement is to be properly understood was explained by the High Court in Australian Broadcasting Corporation v O’Neill.[2] The plaintiff must demonstrate a prima facie case. This requirement is to be understood as to whether there is a serious question to be tried as to the plaintiff’s entitlement to relief, not whether it is more probable than not that the plaintiff will succeed at trial. The sense in which the test is understood is that the plaintiff must prove, prima facie, as sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending trial. In context, it must show that it has a putative legal or equitable right in respect of which final relief is sought which will justify the restraints sought. The requisite strength of the probability of ultimate success depends on the nature of the rights asserted and of the practical consequences likely to flow from the interlocutory order sought.

   [2](2006) 227 CLR 57, 68-9 [19], 81-7 [65]-[83].

1. Applying the test to this proceeding, I am satisfied that the plaintiff cannot demonstrate a prima facie case. There is no serious question to be tried in this proceeding that the plaintiff is entitled to any injunctive relief against the Sheriff in respect of the claim for damages for trespass. Assuming, without deciding, that the plaintiff has a strong claim for damages against the defendants for its failure to comply with the Building Act, neither that claim nor the strength of it can demonstrate any putative legal or equitable right in the plaintiff to retain title to, and possession of, the property against a judgment creditor, simply because the plaintiff has an intention at some time in the future to rebuild the demolished parts of the property and use it as a residence.

1. That generalised intention cannot, and does not, constitute a putative legal or equitable right in respect of which final relief is sought in the proceeding and provides no justification to restrain the execution of the warrants.

1. In argument, Mr Giurina submitted that it would be inequitable to allow the Sheriff to enforce the warrants and collect the outstanding costs orders against him for the benefit of the Council, when his rights against the Council in relation to the conduct that is pleaded in the amended statement of claim remains to be determined. However, Mr Giurina was unable to point me to any properly articulated equitable principle that denies the Council the legal right to enforce its judgments while a claim for damages from a trespass progressed through the courts.

1. The proposition may be tested in this sense: final relief sought by the plaintiff is damages for the injury, loss and damage sustained by the plaintiff in consequence of the alleged unlawful entry and demolition of portions of the property. It does not follow that the measure of that loss will be the costs of rebuilding what was unlawfully demolished, but on any view, damages will be an adequate remedy. The claim for damages is capable of being tried and resolved regardless of whether the plaintiff is the owner, or in possession, of the property at the trial of the proceeding.

1. Put another way, because the property itself is not the subject of the dispute and the plaintiff only seeks damages, the plaintiff cannot show that irreparable harm in the relevant sense will be suffered by him if the property is sold. There is no demonstrated need to preserve the status quo in this sense until the trial of the proceeding.

1. The plaintiff has not asserted any claim about the relationship between the ultimate relief sought in the trial proceeding, and retaining title to, and possession of, the property. As alluded to earlier, in response to the defendant’s submissions, the plaintiff belatedly amended the statement of claim to include relief by permanently restraining the sheriff from enforcing the warrants. This was clearly an attempt to link the interlocutory relief to the final relief in the trial. However, no grounds were pleaded that identify a relationship between delaying the execution of valid warrants and the pleaded cause of action for damages based on the delay in service of the  emergency order that would prima facie create an equity that would disentitle the Council from enforcing its legal rights to execute on a validly obtained judgment.

1. The interlocutory relief applied for is inappropriate in the context of the final relief being sought in the proceeding. In reality, all that the plaintiff seeks to do is to prevent the sale of the property in the valid execution of a judgment against him in favour of the defendant for personal reasons. If the plaintiff succeeds on the cause of action pleaded and recovers a judgment for damages, there is no evidence that the Council would be unable to satisfy that judgment. There is not, in any relevant sense, a status quo to be preserved pending trial.

1. The summons will be dismissed.

1. There is no reason why the usual rule that costs follow the event should not apply on this application. I will further order that the plaintiff pay the defendant’s costs.