FEDERAL CIRCUIT COURT OF AUSTRALIA
| HICKIE & ANOR v ZDRILIC & ANOR | [2015] FCCA 1329 |
| Catchwords: BANKRUPTCY – Creditors’ petition filed – notice stating grounds of opposition to petition filed – whether Court should go behind judgment founding creditors’ petition when judgment has been appealed and dismissed, and special leave has been sought and refused in the High Court – allegations of fraud and collusion against creditors – whether creditors’ petition should be adjourned to allow debtors to run appeal against other parties involved in litigation that founded the creditors’ petition when those parties are not parties to the creditors’ petition – consideration when debtors admit they are insolvent – notice stating grounds of opposition to creditors’ petition should be dismissed. |
| Legislation: Bankruptcy Act 1966 (Cth), ss.40(1)(g), 52(2)(a), 52(2)(b) |
| First Applicant: | DAVID HICKIE |
| Second Applicant: | VOCIFA PTY LTD |
| First Respondent: | SAM ZDRILIC |
| Second Respondent: | AMY ZDRILIC |
| File Number: | SYG 2324 of 2014 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing dates: | 20, 23 February 2015 |
| Delivered at: | Sydney |
| Delivered on: | 27 May 2015 |
REPRESENTATION
| Counsel for the Applicants: | Mr F Lever |
| Solicitors for the Applicants: | Bartier Perry |
| The Respondents: | The First Respondent appeared in person on behalf of the Respondents. |
ORDERS
The Notice Stating Grounds of Opposition to the Creditors’ Petition filed on 15 September 2014 be dismissed.
The Creditors’ Petition proceed to hearing before a registrar of the Court forthwith.
Costs be reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2324 of 2014
| DAVID HICKIE |
First Applicant
| VOCIFA PTY LTD |
Second Applicant
And
| SAM ZDRILIC |
First Respondent
| AMY ZDRILIC |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court is a creditors’ petition filed on 20 August 2014 (the “Petition”) by the applicants, David Hickie and Vocifa Pty Ltd (together, the “Applicants”), seeking the making of sequestration orders against the estates of the respondents, Sam Zdrilic and Amy Zdrilic (together, the “Respondents”), pursuant to s.52 of the Bankruptcy Act
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- Hickie v Zdrilic [2015] FCCA 1329
- Case
- [2015] FCCA 1329
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CaseChat Overview and Summary
This case concerned an application by Land Enviro Corp Pty Ltd and Mr Sam Zdrilic (the applicants) for special leave to appeal to the High Court of Australia from part of a judgment of the NSW Court of Appeal. The dispute arose from earlier proceedings concerning the purchase of land, where the applicants alleged they had been misled. The NSW Court of Appeal had dismissed an application for an extension of time to appeal against orders made in favour of Mr David Hickie and Vocifa Pty Ltd (the respondents), finding there was no real or significant prospect of success in the proposed appeal against them.
The primary legal issue before the court was whether special leave to appeal should be granted in relation to the dismissal of the applicants' application for an extension of time to appeal against the respondents. The applicants argued that the dismissal was unjust and unwarranted, as it would prevent them from prosecuting their appeal against other parties, leading to financial ruin. They contended that the respondents were necessary parties to the appeal, as the applicants sought to set aside agreements to which all respondents were party, and that the Court of Appeal erred in finding no arguable case against the respondents, particularly concerning agency.
Lloyd-Jones J considered the reasoning of the NSW Court of Appeal, which had agreed with the trial judge that there was no evidential basis for finding that Mr Renshall or his associates acted as agents for Mr Hickie or Vocifa Pty Ltd in making the alleged misrepresentations. The Court of Appeal noted that the applicants' counsel had conceded that a representation of authority by Mr Renshall would not be sufficient to establish agency. Furthermore, the Court of Appeal found that the appeal against the respondents lacked any arguable case and did not raise any issue of wider general interest or importance, making it unlikely to attract special leave.
Consequently, the application for special leave to appeal was dismissed. The court ordered that the defendants' notice of motion be dismissed with costs, and that the $15,000 paid into court as security for costs be paid out to the plaintiffs' solicitors. The defendants were also ordered to pay the plaintiffs' costs of their motion.
The primary legal issue before the court was whether special leave to appeal should be granted in relation to the dismissal of the applicants' application for an extension of time to appeal against the respondents. The applicants argued that the dismissal was unjust and unwarranted, as it would prevent them from prosecuting their appeal against other parties, leading to financial ruin. They contended that the respondents were necessary parties to the appeal, as the applicants sought to set aside agreements to which all respondents were party, and that the Court of Appeal erred in finding no arguable case against the respondents, particularly concerning agency.
Lloyd-Jones J considered the reasoning of the NSW Court of Appeal, which had agreed with the trial judge that there was no evidential basis for finding that Mr Renshall or his associates acted as agents for Mr Hickie or Vocifa Pty Ltd in making the alleged misrepresentations. The Court of Appeal noted that the applicants' counsel had conceded that a representation of authority by Mr Renshall would not be sufficient to establish agency. Furthermore, the Court of Appeal found that the appeal against the respondents lacked any arguable case and did not raise any issue of wider general interest or importance, making it unlikely to attract special leave.
Consequently, the application for special leave to appeal was dismissed. The court ordered that the defendants' notice of motion be dismissed with costs, and that the $15,000 paid into court as security for costs be paid out to the plaintiffs' solicitors. The defendants were also ordered to pay the plaintiffs' costs of their motion.
Orders
Orders of the court
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Background
Background to the litigation
In the Zdrilic Bankruptcy Notice Judgment, I set out a detailed background setting out the history and basis upon which those proceedings arose at [15]-[24]. As the Petition is based on the Bankruptcy Notice issued against the Respondents, it is convenient to reproduce that background in the instant matter. I stated therein:15. There has been significant litigation in recent history involving not only the parties to the current proceedings, but a number of other parties as well. I have had regard to the judgment of the NSW Court of Appeal and it is convenient to address these reasons insofar as they relate to the Review Application.16. The most recent decision of the NSW Court of Appeal in Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2014] NSWCA 34 was an application by the Applicants (as well as two other parties, being companies related to the Applicants) seeking an extension of time to appeal against what can be described as the substantive judgment of Justice Stevenson in Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2012] NSWSC 382. It should be noted the Applicants (and the two related companies) brought an application seeking an extension of time to lodge a notice of appeal before Allsop P (as he then was), which his Honour dismissed: Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2013] NSWCA 35.17. In the judgment of Beazley P, Basten and Leeming JJA in Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2014] NSWCA 34 the headnote provides a convenient background of the events leading up to and including the commencement of litigation and states:In 1998, Land Enviro Corp Pty Ltd (“LEC”) had contracted to purchase an area of land for $2.5 million from Powercoal Pty Ltd. LEC (then under the control of the second applicant, Mr Zdrilic) was unable to obtain the necessary finance to complete the purchase and the land was eventually purchased by another company, HTT Huntley Heritage Pty Ltd (“HTT”), which had been incorporated by a number of directors of LEC shortly before Powercoal sent a notice to complete to LEC. In 2001, LEC commenced proceedings alleging breaches of duty and improper use of information and opportunities against these directors; HTT was joined as a defendant. In 2003 LEC placed a caveat over the land.In 2004 the parties agreed to settle the 2001 proceedings and allow the development of the site to go ahead. By this time, a Mr Renshall was directing the operations of HTT. Key features of this agreement included making Mr Zdrilic a director of HTT; the discontinuance of the 2001 proceedings and the removal of the caveat, once HTT had obtained funding to pay off debts incurred by LEC and HTT, to allow the land to be developed.Mr Zdrilic discontinued the proceedings and the caveat was withdrawn. However, this occurred without the necessary funding being obtained by HTT. Mr Renshall had made representations to Mr Zdrilic that funding was forthcoming. Mr Renshall also informed Mr Zdrilic that a condition of the funding was Mr Zdrilic surrendering his involvement with HTT as agreed to in the settlement. In 2006, when funding did not appear to be forthcoming, LEC lodged a caveat on the title to the land and, in 2007, commenced proceedings to set aside the settlement made in 2004 on the basis that Mr Zdrilic had been misled.The trial judge dismissed these proceedings on the basis that Mr Zdrilic was aware there was no funding in place when the agreement was concluded and made no complaint. LEC sought to appeal. A notice of appeal should have been filed by 30 July 2012 but was belatedly filed on 8 November 2012. On 21 February 2013 Allsop P dismissed an application for an extension of time and consequentially dismissed the notice of appeal as incompetent. The principal ground for dismissing the application was the lack of any real or significant prospect of success. LEC sought to review that judgment, pursuant to s 46(4) of the Supreme Court Act 1970 (NSW).18. In the reasons of the Court of Appeal, Basten JA stated in respect of the Respondents (to these proceedings) and the parties more generally at [4]-[7]:4. The active applicant, both before Allsop P and in the review proceedings, was Mr Sam Zdrilic, the second applicant. He appeared, with leave, for the company, Land Enviro Corp Pty Ltd, for his wife, Amy Zdrilic, and for the fourth applicant, Amy Holdings Pty Ltd There is no need to consider the separate interests of the applicants in this proceeding.5. It is, however, necessary to consider the separate interests of the respondents. They fell into three groupings, which may be addressed in reverse order of significance for the present application. Thus, Sentel Pty Ltd, the fourth respondent, was properly joined as a party, but took no part in the proceedings. Its role, as a corporate entity in which both applicants and respondents had an interest, was essentially neutral.6. Secondly, the third respondent (Mr David Hickie), and the sixth respondent (Vocifa Pty Ltd) had common representation and may be identified as the “Hickie interests”. As will be noted below, the primary case for the applicants was that they had suffered loss and damage as a result of misrepresentations for which Mr Renshall (the first respondent) was primarily liable. In the original pleadings, the claim against the Hickie interests was based on Mr Renshall acting as their agent. However, the trial judge found that there was no evidential basis for the agency: at [997]. Nothing was said in the course of the proceedings in this court to cast doubt on that finding. Although part of the relief claimed by the applicants was the setting aside of the settlement of the 2001 proceedings, to which the Hickie interests were party, it was not submitted that they were a necessary party on that basis.7. In brief submissions to this court, the Hickie interests noted that they had incurred significant costs which it appeared they would be unlikely to recover, even if the application were to be dismissed, and that factor, combined with the absence of any arguable case in respect of their liability, meant that the proceedings for review should be dismissed with respect to them. That submission should be accepted.I note Basten JA’s views in respect of the Respondents were agreed with by Beazley P and Leeming JA.19. The Court of Appeal made the following orders in respect of the Respondents on 4 March 2014, amongst others:4. Dismiss the application in relation to [the Respondents].5. The applicants to pay [the Respondents’] costs of the review application.The Court, however, granted the Applicants an extension of time in which to appeal against the first, second, fourth and fifth respondents.20. The Applicants’ special leave application in the High Court only concerns Order 4 of the Court of Appeal of 4 March 2014. The application for special leave was filed on 25 March 2014 and pleads the following grounds:1. The applicants apply for special leave to appeal from part of the judgment of the NSW Court of Appeal dated 4 March 2014. The special leave is sough in relation to order 4, which dismisses the application for leave to file out of time in relation to the third and sixth respondents, Mr Hickie and Vocifa Pty Ltd [Hickie Respondents].2. The special leave is sought under Section 35A because the interests of the administration of justice for this case and, in fact, generally, warrant consideration by the High Court. The dismissal of the application to file out of time, against the Hickie respondents, was unjust and unwarranted and the application against them should not have been treated differently to the application against the first, second and fifth respondents (HTT, Mr Renshall and Devubo Pty Ltd) [HTT Respondents], which was successful because the impact of not granting special leave to appeal in respect of the Hickie respondents will be the deprivation of the Applicants’ ability to prosecute the appeal against the HTT respondents and thereby deprive the Applicants of access to the Court, and thereby financial ruin.3. The Court erred in not granting an extension of time within which to appeal against the third and sixth respondents, being necessary parties to the appeal, because:(a) by the appeal, the applicant’s [sic] seek to set aside agreements, including the HOA and the Deed, to which all respondents are a party;(b) the consequence of the judgment is that the agreements might be set aside against some respondents but left active in relation to others.4. The Court erred in finding that the [sic] there was no arguable case in respect of the Hickie interests, apparently on the basis that the trial judge found that there was no evidential basis that the Second Respondent was acting as agent for the Hickie interests in engaging in misleading or deceptive conduct which induced the entry into the relevant agreements, notwithstanding that the trial judge found that:(a) there was a factual basis for the agency in respect of the negotiation of those same agreements; and(b) the misleading representations were made during the course of negotiations.5. The Court erred in not applying the findings made in respect of the HTT respondents to the Hickie respondents, those findings being that the applicants have a reasonably arguable case to succeed on appeal, with the delay being short and no material prejudice.6. The Court made the following erroneous findings which gave rise to its ultimate error:(a) finding that the Hickie respondents had incurred significant costs in circumstances where those costs were actually met by HTT [Judgment 7];(b) dividing the respondents erroneously into two groups (Renshall interests) and (Hickie interests) and then delivering a different decision for each group;(c) finding that HTT (first and main respondent) as being part of “Renshall’s interests” group [Judgment 8];(d) finding that the misrepresentations were made by Mr Renshall instead of HTT and Mr Renshall [Judgment 6].21. The decision of his Honour Harrison J in Hickie v Land Enviro Corp Pty Ltd [2014] NSWSC 472 on 29 April 2014, the day after the hearing of the Review Application, is of particular assistance in these proceedings. In that decision his Honour dismissed a notice of motion filed by the Applicants (and their related companies) seeking to extend a stay granted by her Honour McCallum J of the order for costs against the applicants that forms the basis of the Bankruptcy Notice.22. It is convenient, for a number of reasons, to reproduce significant portions of Harrison J’s judgment. At [1]-[15] therein his Honour stated:1. By notice of motion filed on 25 March 2014, Land Enviro Corp Pty Ltd, Sam Zdrilic, Amy Zdrilic and Amy Holdings Pty Ltd (the defendants) seek the following orders:1. That a stay of the costs order in the Supreme Court of New South Wales proceedings under the file number 2013/0078308 be extended until 30 days after the High Court of Australia makes a determination in relation to the application for leave to appeal against order 4 of the judgment of the NSW Court of Appeal dated 4 March 2014, or if that application is successful, 30 days after the High Court‘s determination of the appeal.2. In the alternative to order 1, that order 4 of the judgment of the NSW Court of Appeal dated 4 March 2014 be stayed until 30 days after the High Court determination of the application for leave to appeal, or if the application is successful, 30 days after the High Court‘s determination of the appeal against order 4 of the NSW Court of Appeal judgment dated 4 March 2014.2. In order to put these claims in context, it is necessary briefly to trace the not uncomplicated history of the litigation so far.Background3. The judgment debt that is the subject of these proceedings was entered on 14 March 2013 and arises out of a costs order made in proceedings commenced on 26 March 2007, which were ultimately heard and determined by Stevenson J. Orders were sought in those proceedings to set aside a consent judgment dated 1 September 2004 dismissing earlier proceedings in the Equity Division in which Land Enviro Corp Pty Ltd was the sole plaintiff. By an amended statement of claim filed on 11 December 2002, Mr Hickie had been joined to those proceedings, but they were dismissed by consent on 1 September 2004. The plaintiff sought to re-litigate those proceedings.4. Stevenson J heard the matter between 6 February 2012 and 16 March 2012, over more than 25 days of hearing. The case against the plaintiffs alleged that Robert Renshall made actionable representations to the defendants. Stevenson J found that the alleged representations had either not been made or were not actionable if they had been. It was not alleged that Mr Hickie made any of the representations, either on his own behalf or on behalf of Vocifa. His Honour referred at [985] to the fact that the defendants’ counsel had conceded as much. His Honour disposed of the case against the plaintiffs at [987] and [997]–[998] in these terms:[987] As to particular (c), Mr Jucovic accepted that a representation by Mr Renshall of his asserted authority to negotiate on behalf of Mr Hickie would not be sufficient to establish agency. Any such representation would have to come, expressly or implicitly, from Mr Hickie: Freeman and Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 at 503: Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 at [36]....[997] In those circumstances, I cannot see how Mr Zdrilic could reasonably have inferred that the representations allegedly made to him by Mr Renshall concerning the availability of funds (as opposed to negotiation of the terms of the Heads of Agreement) were made on behalf of Mr Hickie.[998] For that reason, my opinion is that HTT and Mr Renshall were not acting as Mr Hickie’s agent for relevant purposes, that is to say for the purposes of making the representations as to the availability of funds.See Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2012] NSWSC 382.5. His Honour published his reasons for judgment on 20 April 2012, dismissing the defendants’ claims pleaded in what by then had become their third amended statement of claim. No allegation was made in those proceedings that Mr Hickie or Vocifa Pty Ltd (the plaintiffs) had made any of the pleaded representations. The case against them was based upon allegations that those who made the representations were the plaintiffs’ agents, but that allegation was dismissed.6. In a separate judgment published by Stevenson J on 7 May 2012, his Honour ordered that the present defendants pay the costs of the present plaintiffs on the ordinary basis up to 1 September 2011 and on an indemnity basis thereafter. The plaintiffs in due course registered a judgment on 14 March 2013 for the assessed costs in the sum of $358,588.89. No challenge to that judgment was ever made.7. However, on 18 May 2012 the defendants served a notice of intention to appeal against the judgment of Stevenson J. By notice of motion filed on 8 November 2012 in the Court of Appeal, the defendants sought an order pursuant to UCPR 51.9(1)(b) extending the time for filing and serving a notice of appeal.8. Other than serving the notice of intention to appeal, the defendants did not advise the plaintiffs or otherwise indicate to them that they proposed to make an application for leave to appeal against his Honour‘s judgment out of time until they served their application to extend time to appeal. That application by the defendants was heard by Allsop P on 18 and 19 February 2013, and dismissed by orders made on 21 February 2013. His Honour ordered that the defendants pay the plaintiffs’ costs of the application. On 6 March 2013, the defendants filed an application pursuant to s 46(4) of the Supreme Court Act 1970, seeking to discharge Allsop P‘s orders together with an order extending the time within which to file and serve their notice of appeal.9. On 12 April 2013, the defendants filed a notice of motion in the Common Law Division seeking an order that the judgment entered on 14 March 2013 be stayed until the proceedings in the Court of Appeal had been determined. On 10 May 2013, McCallum J granted a stay of enforcement of the costs judgment until 3 June 2013, conditional upon the defendants paying the sum of $15,000 into court by way of security for the plaintiffs’ costs of the hearing of the defendants’ s 46(4) application in the Court of Appeal. The defendants paid the sum of $15,000 into court on 28 May 2013.10. On 3 June 2013, McCallum J extended the stay up to and including 18 September 2013, which was the date upon which the s 46(4) application was due to be heard. On 4 October 2013, the plaintiffs undertook not to take any steps to enforce the costs judgment until the expiration of the period of 21 days after the Court of Appeal delivered judgment on the s 46(4) application. In the course of her judgment published on 6 June 2013, her Honour said this:[40] In those circumstances, I felt compelled to determine the application for a stay on the premise that it was not possible for me to form a judgment as to the applicants’ prospects of success in varying the order of Allsop P. I accordingly approached the application on the basis that there may well be very limited prospects of success but, conversely, that there may be some respectable point nestling within the complex and extensive material which will be put before the Court of Appeal.[41] Against those considerations, I concluded that the most important factors in favour of granting a stay were the fact that, if the stay were not granted, that would in all probability stymie the application under s 46(4) of the Supreme Court Act; the fact that that application is ready for hearing and has a hearing date; the relatively narrow scope of that application and the impossibility of excluding the conclusion that the application has reasonable prospects of success.[42] The most important factors against granting the stay were, in my consideration, the need to acknowledge that Mr Hickie and Vocifa are entitled to the benefit not only of the judgments of Stevenson J but of the costs judgment, which is not the subject of any appeal; the apparent risk that the applicants will not be able to satisfy that judgment and the plain prejudice of allowing further costs to be incurred in that circumstance.[43] Weighing those competing considerations, I formed the view that there was an appropriate basis for granting a stay that would be fair to all parties if the applicants were able to provide security in a modest sum to meet Mr Hickie’s legal costs of the hearing of the s 46(4) application in the Court of Appeal. For those reasons, I made the orders set out above.See Hickie v Land Enviro Corp Pty Ltd [2013] NSWSC 706.11. On 4 March 2014, the Court of Appeal dismissed the defendants’ s 46(4) application insofar as it related to the plaintiffs and ordered the defendants to pay the costs. (In an otherwise comprehensive appeal against the decision of Stevenson J in the Court of Appeal, the defendants had only alleged against the plaintiffs that his Honour had erred in not finding that Mr Renshall or his associates were the plaintiffs’ agents). Basten JA dealt with the disposition of the application insofar as it related to the plaintiffs as follows:...See Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2014] NSWCA 34.12. On 25 March 2014, the defendants filed a notice of motion seeking a further stay of the costs judgment and an application for special leave to appeal from the judgment of the Court of Appeal to the High Court. It is convenient to record the terms of the grounds of appeal that the defendants seek to agitate in that court. They are as follows:...13. The defendants have refused to consent to the release to the plaintiffs of the $15,000 paid into court in accordance with the order made by McCallum J on 10 May 2013. The full amount of the costs judgment remains outstanding....15. On 5 April 2013 Sam Zdrilic and Amy Zdrilic were each served with bankruptcy notices. On 17 March 2013 each of them made an application to the Federal Court of Australia to set the notices aside. District Registrar Wall dismissed those applications on 18 March 2014. Sam Zdrilic and Amy Zdrilic filed an application for review of that decision in the Federal Court on 27 March 2014, which is also listed for hearing on 28 April 2014. The time for compliance with the bankruptcy notices has now expired.23. His Honour then conducted an analysis of the applicable principles in respect of stays at [16]-[20], then the parties’ submissions in respect of the application before his Honour at [21]-[38]. It is not necessary to reproduce his Honour’s reasons for the purposes of this judgment.24. Harrison J then provides his consideration in respect of the application before him. Notwithstanding the specific circumstances of the matter before his Honour, I am of the view his reasons are also of assistance in the matter before this Court. His Honour stated at [39]-[50]:Consideration39. Doing the best I can I am unable to see any basis at all either for a continuation or extension of the stay upon the costs judgment that favours the plaintiffs or for a stay of any of the Court of Appeal‘s recent orders.40. Mr Zdrilic has argued at length and in detail. He has propounded every conceivable argument in support of his application and then some. He is clearly passionate about what he perceives to have been a fraud practised upon him with devastating financial and emotional consequences. I have no doubt about the sincerity with which he holds to his views concerning what occurred and what he maintains is required to put things right.41. The difficulty for Mr Zdrilic, however, is that he is unable to convert his dissatisfaction with the decisions of Stevenson J or the Court of Appeal into some suitable argument to support the orders that he seeks. In large measure, Mr Zdrilic does no more than protest that the arguments that were rejected by earlier courts should now carry the day. Even putting aside for the sake of the argument that Mr Zdrilic will have to establish some particular matters to attract a grant of special leave, he has not demonstrated why the Court of Appeal was wrong. Mr Zdrilic has a tendency instead to give emphatic repetition to his salient points as if doing so will give them more force than they have previously received. As understandable as that approach may be, it does not further his cause.42. Mr Zdrilic also embraces selective portions of the reasoning of the Court of Appeal without coming to terms with the parts that do not favour him. Stevenson J held that Mr Hickie was not a principal responsible for the acts of misrepresenting agents. Basten JA agreed. Despite what Leeming JA said at [68] in the Court of Appeal judgment, Mr Zdrilic appears to ignore that at [69] his Honour also said this:[69] I agree with what Basten JA has said about the absence of a case against the Hickie interests, and his Honour’s proposed orders as to costs...43. It will be recalled that Basten JA had earlier agreed with Stevenson J that there was no evidential basis for the agency. That was an unsurprising finding by the trial judge having regard to the quoted concession made by Queen’s Counsel appearing for Mr Zdrilic that a representation by Mr Renshall of his asserted authority to negotiate on behalf of Mr Hickie would not be sufficient to establish agency. Basten JA reiterated that nothing said in the course of the proceedings in the Court of Appeal cast any doubt upon that finding. Leeming JA’s agreement at [69] is directed to reinforcing that proposition. It is wholly inimical to the case Mr Zdrilic continues to propound.44. Nor does there appear to be any reasonable prospect that the decision of the Court of Appeal would attract attention as a special leave candidate. It seems clearly to be a case that turns wholly upon unexceptionable facts and is concerned with no particular issue of law of wider general interest or importance. Despite the manifold ways in which Mr Zdrilic has attempted to formulate his concerns, they ultimately distil entirely to a single complaint that the findings of no agency are wrong. That factual dispute is wholly unlikely to attract a grant of special leave to appeal to the High Court.45. Moreover, the balance of convenience now clearly favours the plaintiffs. The corporate defendants are insolvent. There is no relationship between the solvency of any of the defendants and the prospect that the costs judgment will be enforced. The subject matter of the stay is not co-extensive with the subject matter of the proposed appeal to the High Court, so that there is no risk that the appeal will prove to be abortive if the defendants are successful there. The defendants have not identified anything that approaches arguable grounds of appeal, or some matter that would attract a grant of special leave. There is no identified risk that the plaintiffs would dissipate the benefit of the costs judgment so that it was beyond the reach of the defendants in the (highly unlikely) event that it was overturned in due course. The defendants have never challenged the quantum of the costs judgment or the assessment process that generated it.46. I am not satisfied that the defendants have established or demonstrated any reason at all that warrants the exercise of discretion in their favour.The plaintiffs’ motion47. The plaintiffs filed a notice of motion on 3 April 2014 seeking a single substantive order (erroneously suggesting on the title page that the order was sought on behalf of Land Enviro Corp) that the amount of $15,000 paid into court on 28 May 2013 on behalf of the defendants in compliance with the orders of McCallum J be paid to Bartier Perry on behalf of the plaintiffs. That order was made by way of security for the plaintiffs’ costs of the hearing of the defendants’ s 46(4) application in the Court of Appeal.48. The application is supported by the affidavit of Philip James Brand, the solicitor working in the office of Bartier Perry with the conduct of this matter on behalf of the plaintiffs, which was sworn 1 April 2014. Mr Brand deposed, among other things, to the fact that in his opinion as a solicitor with over 30 years’ experience, the work undertaken by Bartier Perry and counsel retained by that firm for the plaintiffs would have generated party/party costs under the Legal Profession Act 2004 referable to the s 46(4) proceedings in excess of $15,000. Tax invoices from Mr Lever SC and Bartier Perry that are annexed to the affidavit support Mr Brand’s opinions. Mr Brand was not cross-examined. The defendants did not actively oppose the order sought, otherwise than in the context of their principal prayers for relief.49. There is not in my opinion any demonstrated basis why the order sought by the plaintiffs should not be made.Conclusions and orders50. I consider that the following orders should be made:1. Dismiss the defendants’ notice of motion filed 25 March 2014 with costs.2. Order that the amount of $15,000 paid into court on 28 May 2013 on behalf of the defendants be paid out to Bartier Perry, solicitors.3. Order the defendants to pay the plaintiffs’ costs of their motion filed 3 April 2014, limited to the costs of preparation and filing of the notice of motion and the preparation, swearing and filing of the affidavit of Philip James Brand dated 1 April 2014.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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