Hu v H & Q Café Pty Ltd
[2024] VSCA 283
•22 November 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2023 0115 |
| RAYMOND BING HU | Applicant |
| v | |
| H & Q CAFÉ PTY LTD (ACN 624 852 179) & ORS | Respondents |
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| JUDGES: | NIALL and KAYE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 22 November 2024 |
| DATE OF JUDGMENT: | 22 November 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 283 |
| JUDGMENT APPEALED FROM: | Re H & Q Café Pty Ltd (Supreme Court of Victoria, Efthim AsJ, 19 July 2023) |
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PRACTICE AND PROCEDURE – Appeal – Costs – Application for stay on order for costs –Applicant brought winding up application against first respondent – Oppression – Applicant allegedly denied access to company records and deprived from participating in management of company by second respondent – Applicant claimed management of company not in interests of all shareholders – Applicant claimed employment unlawfully terminated – Applicant not a reliable witness – Judge found conduct of second respondent not oppressive – Not just and equitable to wind up company – Judge dismissed application with order for costs against applicant – Respondents’ costs taxed and allowed – Applicant served bankruptcy notice – Respondents sought winding-up application against applicant’s company – Applicant filed application for leave to appeal against lower court decision – Whether appeal would be rendered nugatory without stay because of pending bankruptcy proceedings against applicant – Grounds of appeal sufficiently arguable to grant stay – Application for stay granted subject to undertaking.
Corporations Act 2001 (Cth), ss 232, 233, 461; Fair Work Act 2009 (Cth), ss 45, 293; Supreme Court (General Civil Procedure) Rules 2015, rr 57.12, 64.39, 66.16, 77.05, referred to.
Cross Country Realty Victoria Pty Ltd v Ubertas 350 William Street Pty Ltd [2015] VSCA 347; Maher v Commonwealth Bank of Australia [2008] VSCA 122; Cellante v G Kallis Industries Pty Ltd [1991] 2 VR 653; Neate v Thoroughbred International Marketing Pty Ltd (2012) 34 VR 318; ASEA 1 Pty Ltd v Rudyard Pty Ltd [2020] VSCA 122; Warren v Coombes (1979) 142 CLR 531; Fox v Percy (2003) 214 CLR 118, considered.
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| Counsel | |||
| Applicant: | In person | ||
| Respondents: | Mr S Rubenstein (pro bono) | ||
Solicitors | |||
| Applicant: | In person | ||
| Respondents: | In person | ||
NIALL JA
KAYE JA:
This is an application for the stay of an order for costs against the applicant and HGPY Pty Ltd (‘HGPY’), which is the trustee of the applicant’s family trust.
In March 2018, the first respondent, H & Q Café Pty Ltd, was incorporated as the vehicle by which, as trustee of the H&Q Unit Trust, the applicant and the second respondent, Ms Qiu, were to purchase and conduct the Parkville Café, which was located at the Royal Children’s Hospital, Parkville, Melbourne.
On 30 April 2018, the first respondent entered into a binding agreement to purchase the café for $2.4 million. The applicant contributed $360,000, and the second respondent contributed $640,000. The balance of the purchase price was financed by a loan of $1.5 million by the CBA. The applicant and the second respondent each provided a personal guarantee of that loan.
As a result of the purchase, the second respondent holds a 64 per cent interest in the café through a family trust (the SJS Family Trust), of which the third respondent (Hostec Homes Pty Ltd) is the trustee. The applicant holds a 36 per cent interest in the café through his family trust, of which HGPY is the trustee.
Initially, the applicant and the second respondent were each employed in the café. However, the relationship between them deteriorated. In about June 2019, the applicant’s employment at the café was terminated by the second respondent.
In January 2021, the applicant and HGPY commenced a proceeding in the Supreme Court, by originating motion, claiming relief under ss 233 and 461 of the Corporations Act 2001 (Cth) (‘Corporations Act’). By its amended points of claim in the proceeding, the applicant and HGPY sought orders, pursuant to s 461(k), or, alternatively, pursuant to ss 233 and 461(e) and (f) of the Corporations Act, that the first respondent be wound up.
Pursuant to r 77.05 of the Supreme Court (General Civil Procedure) Rules 2015, the proceeding was referred to an Associate Justice, Efthim AsJ, for hearing and determination.
The hearing came before Efthim AsJ in February 2023. His Honour delivered judgment on 19 July 2023, dismissing the application by the applicant and HGPY that the first respondent be wound up. On 13 September 2023, his Honour made formal orders dismissing the amended originating process, and ordering that the applicant and HGPY pay the respondents’ costs of the proceeding on a standard basis.
On 29 September 2023, the applicant filed an application for leave to appeal.
On 8 February 2024, the respondents filed a summons seeking a taxation of their costs.
Subsequently, on 17 July 2024, the costs of the respondents were taxed and allowed in the sum of $305,490.
On 25 July 2024, the respondents, by registered post, served on HGPY a creditors statutory demand dated 19 July 2024, with an accompanying affidavit.
On 28 August 2024, the respondents served on HGPY an originating process and supporting documentation, seeking orders that HGPY be wound up.
On 5 September 2024, the applicant was served with a bankruptcy notice dated 25 July 2024. The bankruptcy notice expired on 26 September 2024.
On 16 September 2024, the applicant filed the present application, pursuant to r 64.39 of the Supreme Court Rules, seeking a stay of enforcement of the costs orders pending determination of the appeal.
The issues in the proceeding
In the proceeding before Efthim AsJ, the applicant and HGPY submitted that the first respondent should be wound up on the basis that its affairs had been conducted in a manner that was oppressive and prejudicial to the plaintiffs, or, alternatively, pursuant to s 461(k) of the Corporations Act, on the basis that it was just and equitable.
The applicant and HGPY submitted that the conduct of the first respondent’s affairs was oppressive and prejudicial to their interests for four reasons, namely:
(1)the applicant had been denied access to information about the true financial performance of the company and the value of his units and shares;
(2)the applicant’s employment with the first respondent had been unlawfully summarily determined;
(3)the applicant had been removed from participation in the management and affairs of the first respondent, and thus had no control over the decisions which affected his increasing liability as a guarantor of the first respondent’s debts;
(4)The second respondent had conducted the affairs of the company in a manner, which was not in the interests of the shareholders, because she had preferred her own interests over those of the minority shareholders.
The applicant and HGPY submitted that the first respondent should be wound up on just and equitable grounds for the following reasons:
(1)the company’s financial position was abysmal and it was unable to pay its debts;
(2)there had been an irretrievable breakdown of the relationship between the shareholders, leading to the failure of the objectives of the first respondent;
(3)false financial records had been provided by the second respondent to the CBA;
(4)the second respondent had provided false Business Activity Statement (‘BAS’) lodgements with the Australian Tax Office;
(5)the second respondent had caused the first respondent to instruct an expert with false information in County Court proceedings between the company and its previous owner of the Parkville Café (‘the County Court proceeding’);
(6)there had been numerous contraventions of the first respondent’s Fair Work Act 2009 (Cth) (‘Fair Work Act’) obligations under the direction of the second respondent;
(7)the first respondent’s records could not be relied on;
(8)the second respondent continued to be dishonest with the CBA and had a complete lack of insight or contrition about that matter;
(9)the first respondent, under the second respondent’s direction, had failed to properly account for cash revenues, and there was no satisfactory evidence that the affairs of the company had been regularised;
(10)the second respondent was not a fit and proper person to manage the first respondent.
Summary of reasons of Associate Justice
In detailed reasons for judgment,[1] Efthim AsJ commenced by assessing the evidence, given respectively by the applicant, the second respondent, and Ms Mary Cui, a professional accountant, who had been engaged by the second respondent to act for the first respondent. His Honour considered that the applicant was not a reliable witness, and there were a number of inconsistencies between the evidence, given by him under cross-examination, and the evidence contained in his affidavits.[2] On the other hand, his Honour considered that the second respondent was a truthful and honest witness, who was ‘careful and measured’ in her evidence, and who gave responsive answers to the questions put to her.[3] Efthim AsJ also found that the evidence, given by the accountant, Ms Cui, was ‘clear, concise and of assistance’, and that she presented as an honest and truthful witness.[4]
[1]Re H & Q Café Pty Ltd (Supreme Court of Victoria) Efthim AsJ, 19 July 2023 (‘Reasons’).
[2]Reasons, [57]–[58].
[3]Ibid [72].
[4]Ibid [83].
Efthim AsJ then considered each of the grounds of oppression relied on by the applicant.
In respect of the first ground — that the applicant had not been provided with information about the true financial performance of the first respondent — Efthim AsJ rejected the applicant’s submission that the profit and loss statements provided to him were deliberately false, and that the second respondent had deliberately under-reported the company’s sales in order to deny profit distributions to the applicant.[5] His Honour concluded that the applicant had been given sufficient access to the financial statements of the company.[6]
[5]Ibid [106].
[6]Ibid [111].
In respect of the second point relied on by the applicant — the circumstances of the termination of the applicant’s employment — his Honour concluded that the applicant’s employment had been terminated by reason of his poor performance at work and not his redundancy. Accordingly, the termination of his employment was not oppressive.[7]
[7]Ibid [123].
In respect of the third point relied on by the applicant — that he had been precluded from participating in the company’s affairs — the Associate Justice noted that the applicant had, in fact, agreed to resign as a director, and that he had agreed that the second respondent could control the business, because she was a majority shareholder. Although the applicant had subsequently altered his position in that respect, it was not an appropriate ground of oppression.[8]
[8]Ibid [127].
The fourth matter relied on by the applicant was that the affairs of the first respondent had been managed in a manner, which gave preference to the interests of the second respondent. The applicant relied on eight points in support of that proposition.
Efthim AsJ reached the following conclusions about each of those points:
(1)In respect of payments made by the company to the second respondent’s husband Mr Li, the Associate Justice found that Mr Li was an employee of the business. His Honour was not prepared to infer, from the fact that time sheets had not been completed by Mr Li on a daily basis, that he did not work in the business. His Honour, further, was not prepared to draw any inference, based on the fact that Mr Li did not give evidence in the case.[9]
(2)The Associate Justice rejected the proposition that the difference between the salary paid to the second respondent, and the salary paid to the applicant, was not justified. His Honour concluded that the second respondent worked much longer hours than the applicant, and she was justified in being paid a greater salary.[10]
(3)Efthim AsJ accepted the evidence of the second respondent that payments, by the company to her, constituted repayments of the loans that she had made to the company.[11] His Honour also accepted that those payments to her were not preferential, on the basis that the original loans made by both the second respondent and the applicant had not been repaid.[12]
(4)The applicant submitted that the second respondent had been inconsistent as to whether other payments, made by the first respondent, were salary or repayments of loans by her to the company. Efthim AsJ accepted the evidence, given by the second respondent, that the payments were repayments of personal loans, and that she had previously unintentionally erred in noting them as director’s fees.[13]
(5)The applicant relied on payments, by the first respondent to the second respondent, relating to the use of her motor vehicle. Efthim AsJ noted that the first respondent did not have a company vehicle, and that it was reasonable for the second respondent to claim the expenses for the use of her vehicle on company business.[14]
(6)The applicant sought to impugn telephone expenses incurred by the first respondent. Efthim AsJ concluded that he could not make any finding that those expenses were excessive, as no evidence had been adduced as to what are the appropriate telephone expenses for a similar café.[15]
(7)The applicant also relied on credit card statements of the first respondent that recorded a number of purchases that appeared, on their face, to be of a personal nature. Efthim AsJ concluded that although some of the expenses seemed to have been incurred for the purchase of personal items by the second respondent, they were not major. The applicant had also used a company credit card to purchase personal items. Accordingly, that circumstance was not a ground sufficient to make a finding of oppression.[16]
(8)The final point, relied on by the applicant, in respect of the claim based on oppression, was that the second respondent had caused cash and surpluses of the first respondent to be distributed to herself. In that respect, the applicant claimed that some $305,690 had not been accounted for. Based on the evidence of Ms Cui, the accountant, Efthim AsJ held that the applicant had not established that there was missing cash in the amount of $305,690. Accordingly, his Honour could not conclude that the second respondent had paid the cash surpluses of the company to herself or that she had used that cash for her own purposes.[17]
[9]Ibid [137].
[10]Ibid [147].
[11]Ibid [150]–[153].
[12]Ibid [157].
[13]Ibid [162].
[14]Ibid [168].
[15]Ibid [173].
[16]Ibid [192].
[17]Ibid [197].
Efthim AsJ concluded this aspect of the case by noting that the only ground, which could lead to a finding of oppression, was that the second respondent had used the company credit card for her personal use. In that respect, Efthim AsJ again noted that the applicant had also used the credit card for his personal expenses. Accordingly, his Honour considered that a remedy of winding up would not be appropriate.[18] His Honour also was of the view that the applicant had engaged in conduct that disentitled him from relief under s 232 and s 233 because: he was aware that employees were being paid off the books and he had failed to raise his concerns about that issue; he had failed to perform his role and responsibilities as an employee of the company; and he had placed conditions on the requests that had been made of him to assist in the County Court proceeding, which were inappropriate.[19]
[18]Ibid [198].
[19]Ibid [199].
Associate Justice Efthim then turned to the points, relied on by the applicant, for the contention that it was just and equitable that the first respondent be wound up.
The first matter relied on was the fact that the second respondent had provided false financial records to the Commonwealth Bank. Efthim AsJ noted that, on her own admission, the second respondent had provided false documents to the CBA. His Honour considered that the second respondent had been dishonest in not providing the bank with proper financial records. However, she had admitted to providing the false information, she had explained why the false information was provided, and the bank had continued to support her. Efthim AsJ noted that there was no evidence of any continuing dishonesty by her.[20]
[20]Ibid [209].
The applicant further submitted that the second respondent had been dishonest in informing the CBA that the Supreme Court proceeding had been stayed, pending the outcome of the County Court proceeding. Efthim AsJ concluded that he could not be satisfied that the second respondent had been dishonest, but, rather, there may have been a misunderstanding between the second respondent and the CBA.[21]
[21]Ibid [217].
The third matter, relied on in this respect, was the lodgement of BAS documents with the Australian Tax Office. In that respect, the second respondent admitted that the original BAS documents lodged with the ATO were incorrect, but she said they were not false. Those lodgements had under-reported the true sales of the company by not including ‘off the books’ sales, and the company subsequently prepared amended BAS lodgements, which included those sales.[22]
[22]Ibid [219]–[229].
The next matter, relied on by the applicant, was an allegation that the second respondent had caused the company to instruct an expert with false information for the purposes of the County Court proceedings. Efthim AsJ rejected that allegation, and concluded that the County Court had been presented with an accurate account of the company’s financial transactions and financial statements.[23]
[23]Ibid [236].
The applicant next submitted that the evidence revealed numerous contraventions of the company’s Fair Work Act obligations while under the direction of the second respondent. Efthim AsJ noted that the employees of the company were no longer being paid less than the applicable minimum wage, and that their superannuation was being appropriately paid.[24]
[24]Ibid [247].
The Associate Justice next rejected the proposition, relied on by the applicant, that the second respondent had presented false financial accounts. His Honour noted that the accounts relied on in support of that proposition were not finalised accounts. When the appropriate adjustments were made, the accounts were not false.[25]
[25]Ibid [251].
The Associate Justice agreed with the proposition that when the second respondent first commenced in the business, her conduct was ‘questionable’. However, she had rectified matters, and had made many changes in order to conform with proper corporate governance. Accordingly, his Honour considered that her previous conduct in that respect was not a reason to assume that she would not continue to manage the company in a proper manner.[26] Efthim AsJ also accepted that the company’s affairs, in respect of the underpayment of wages, had been properly regularised.[27]
[26]Ibid [262].
[27]Ibid [276].
Efthim AsJ then addressed the question whether the second respondent was a fit and proper person to manage the first respondent. His Honour noted that there had been some issues, which were of concern, but that the second respondent had rectified them, and that the company was operating according to law as it should. Accordingly, his Honour concluded that the second respondent was a person who should be permitted to have the conduct and control of the company.[28]
[28]Ibid [278].
The next issue, raised by the applicant, concerned the solvency of the first respondent. It was submitted that the company was worthless, that it continued to trade at a loss, and that it had a ‘hopelessly negative equity value’. His Honour considered that on a cash flow basis, the company was not insolvent. There was no evidence that it was not continuing to pay its creditors when the obligations fell due.[29]
[29]Ibid [291].
The final matter, considered by Efthim AsJ, concerned the breakdown of the relationship between the applicant and the second respondent. His Honour considered that the breakdown of the relationship did not affect the continuation of the business. Although the company was not properly managed when it first acquired Parkville Café, the second respondent had made appropriate changes. There were some early failures to comply with statutory obligations, but those matters had been rectified.[30]
[30]Ibid [303]–[309].
Finally, Efthim AsJ noted that the respondents had made an offer to pay the costs of the applicant and HGPY in the proceeding, to use their best endeavours to release the applicant’s personal guarantees, and to otherwise indemnify him from liability arising under them. His Honour considered that the plaintiffs had rejected that offer and pressed on with the winding up of the first respondent for what appeared to be no good reason.[31]
[31]Ibid [326].
Grounds of appeal
Ground 1: The basis for a finding of oppression
6.1At (J[198]) the learned trial judge concluded that the only ground which may lead to a finding that there has been oppression is that Ms Qiu appears to have used the Company credit card for her own personal use.
6.2In addition to Ms Qiu’s personal use of the Company credit card, the learned trial judge should have found that oppression was established in connection with Ms Qiu’s:
(a)termination of the Applicant’s employment;
(b)conduct in causing the company to pay wages to her husband;
(c)conduct in reducing the Applicant’s salary and increased her own;
(d)conduct in making withdrawals of at least $115,044.43 from the Company bank account, and causing the Company to make payments totalling $88,384 to her family trust; and
(e)causing the company to make payments of approximately $50,000 for expenses related to her family car.
Ground 2: The remedy of winding up would be “inappropriate”
6.3At (J[198]) the learned trial judge concluded that “a remedy of winding up would be inappropriate” having regard to his Honour’s conclusion that the only basis for a finding of oppression is that Ms Qiu appears to have used the Company credit card for her own personal use. The learned trial judge should have found that Ms Qiu engaged in the further oppressive conduct identified at 6.2(a)–(e) above.
6.4The learned trial judge should have found that a winding up order was the appropriate remedial response to Ms Qiu’s oppressive conduct, particularly having regard to the Applicant’s increasing liability as a personal guarantor of the Company’s debts to the CBA and its landlord.
Ground 3: The conduct of Mr Hu disentitles him from relief or remedy
6.5At (J[199]) the learned trial judge concluded that the Applicant engaged in conduct that disentitles him from relief under s 232 or remedy under s 233 of the Act. The learned trial judge erred by failing to identify any legal principle according to which a plaintiff is “disentitled” from relief or remedy on the basis of his or her own conduct. The learned trial judge did not refer to or engage with authorities to the effect that “fault” does not necessarily preclude a plaintiff from relief (e.g. Grace v Biagioli [2006] BCC 85; [2005] EWCA Civ 1222 at [77]. Cited with approval in Mair v Rhodes & Beckett [2018] VSC 132 at [501]).
6.6Further, the learned trial judge erred in considering the conduct referred to in (J[199]) to be relevant to the grant of relief sought by the Applicant.
Ground 4: Just and equitable winding up
6.7The learned trial judge concluded that it was not just and equitable to wind up the Company pursuant to s 461(k) of the Act despite finding that Ms Qiu:
(a)was dishonest in providing incorrect financial records to the Commonwealth Bank of Australia (CBA) in order to disguise the Company’s true financial position (J[201]–[209]);
(b)lodged “incorrect” business activity statements with the Australian Taxation Office that underreported the Company’s sales by excluding “off the books” sales (J[218]–[219]);
(c)caused the Company to contravene ss 45 and 293 of the Fair Work Act 2009 by paying certain employees less than the applicable minimum wage and by failing to pay superannuation in respect of their “cash” wages (J[245]–[247]).
6.8Having regard to those findings, the learned trial judge should have concluded that it was just and equitable to wind up the Company pursuant to s 461(k) of the Act.
Ground 5: The relevance of the Company’s offer
6.9The learned trial judge concluded that even if it was otherwise appropriate to wind up the Company pursuant to s 467 of the Act, his Honour would have declined to do so because the Applicant rejected an open offer made on the eve of the trial.
6.10The learned trial judge erred in concluding that the offer constituted a “other remedy” within the meaning of s 467(4) and in concluding that his Honour would have declined to to [sic] wind up the Company on the basis of the Applicant’s decision not to accept the offer.
The application for a stay
The applicant has had the assistance of pro bono counsel in the preparation of his application for leave to appeal and his written case. However, he was not represented on the present application, in which he appeared in person. The application was supported by two affidavits by the applicant. The respondents were represented by Mr S. Rubenstein of counsel, who appeared for them pro bono, and made helpful submissions on their behalf.
In his first affidavit, the applicant stated that he and his wife are co-owners of their family home in Bentleigh East. However, in the hearing of the application, he clarified that point. In fact, his wife is the sole registered proprietor of the family home. The applicant has maintained that he has a beneficial interest in it having contributed to the purchase price. The company, HGPY, owns two vehicles, a 2018 Toyota Camry hybrid, and a 2013 Mercedes Benz.
In his affidavit, the applicant has undertaken not to sell, transfer or otherwise dispose of those assets until the determination of the appeal or earlier order of the Court. The applicant has deposed that if a stay of the costs order is not granted, he is concerned that the respondents will proceed with the winding up of HGPY, and will seek to bankrupt him personally. If the applicant ultimately succeeds on the application for leave to appeal, and the appeal, the costs orders by the primary judge will be set aside, so that the debts, which are the basis of the application to wind up HGPY and to bankrupt himself, will not exist. The applicant further deposes that if the respondents are successful in winding up HGPY and bankrupting him, that would prejudice his ability to proceed with the appeal in the present matter.
In a second affidavit, the applicant has noted that, in the proceedings brought by the first respondent in this Court to wind up HGPY, it has been acknowledged that the first respondent owes to HGPY a shareholders loan debt of $360,152.62. The applicant therefore maintains that if, ultimately, he is not successful in the appeal in the present proceeding, the debt of $360,152.62 owed by the first respondent to HGPY would be set off against the $305,490 costs orders owed by HGPY (and the applicant) to the first respondent. In such a case, the first respondent would remain indebted to HGPY in the sum of $54,495.22.
In response, the second respondent has deposed that, after orders were made in the present proceeding on 13 September 2023, she made a number of ‘without prejudice’ offers to resolve the issues between the parties, but the applicant and HGPY did not respond to any of them. In addition, the process server, engaged by the respondents, made a number of attempts to serve the bankruptcy notice on the applicant, but, on each visit, the applicant deliberately avoided service. The second respondent contends, in her affidavit, that, despite being aware of the costs order and her efforts to enforce it, the applicant ‘took no action whatsoever’. The second respondent further contends, in her affidavit, that it is ‘highly prejudicial’ to her that the applicant now seeks to apply for a stay of the orders that were made on 13 September 2023, nearly 12 months after those orders were pronounced, and after the respondents have incurred significant legal costs in enforcing them.
Mr Rubenstein, who appeared pro bono on behalf of the respondents, accepted that, for the purposes of the present application, the proposed grounds of appeal are sufficiently arguable. However, he raised four particular points, which he submitted should be taken into account in determining whether the Court, in the exercise of its discretion, should grant a stay in this case. Those points are as follows.
First, Mr Rubenstein noted that the applicant is not a registered proprietor of the family home in Bentleigh East. It appears that in recent times he transferred his legal interest in the property to his wife, and at one point he maintained that he and his wife had separated. Thus, Mr Rubenstein pointed out, the applicant is not in a position to undertake not to sell or dispose of the Bentleigh East property.
Secondly, Mr Rubenstein noted that HGPY is not a party to the application for leave to appeal. In those circumstances, it was submitted, the applicant will not be able to obtain all of the relief claimed in the application for leave to appeal, including the appointment of a receiver and manager of the H&Q Unit Trust. Further, it was submitted that any order for a stay made by the Court should be limited to a stay of the execution of the costs order in respect of the applicant and not in respect of HGPY.
Thirdly, counsel noted that, unlike in a number of stay applications, the applicant in the present case is not seeking a stay of any substantive relief granted by the primary court. Rather, the application is confined to the order for costs made by the Associate Justice.
Fourthly, Mr Rubenstein noted that the applicant only applied for a stay of the costs order after the respondents had taken a number of steps to enforce the judgment, including the taxation of costs, and the institution of both proceedings to wind up HGPY and to bankrupt the applicant.
Application for stay — principles
The Court has jurisdiction to grant a stay of execution of a judgment or order under rr 64.39 and 66.16 of the Supreme Court (General Civil Procedure) Rules 2015. The principles, which apply to such an application are well-established. The starting point is that, ordinarily, a successful party is entitled to the benefit of a judgment.[32] Accordingly, the onus is on the applicant for a stay to establish that the grant of such a stay is justified in the circumstances.[33] It is recognised that the power to order a stay is to be exercised only where special or exceptional circumstances exist.[34] Such circumstances may exist where there is a real risk that, if a stay is not granted, the appeal will be rendered nugatory.[35]
[32]Cross Country Realty Victoria Pty Ltd v Ubertas 350 William Street Pty Ltd [2015] VSCA 347, [81] (Kyrou and McLeish JJA) (‘Cross Country’); Maher v Commonwealth Bank of Australia [2008] VSCA 122, [20] (Dodds-Streeton JA) (‘Maher’).
[33]Cross Country [2015] VSCA 347, [81] (Kyrou and McLeish JJA); Maher [2008] VSCA 122, [20] (Dodds-Streeton JA).
[34]Cellante v G Kallis Industries Pty Ltd [1991] 2 VR 653, 657 (Young CJ); Neate v Thoroughbred International Marketing Pty Ltd (2012) 34 VR 318, 320–321 [6]–[8] (Mandie JA and Cavanough AJA); [2012] VSCA 65 (‘Neate’); Cross Country [2015] VSCA 347, [82] (Kyrou and McLeish JJA).
[35]Cross Country [2015] VSCA 347, [82] (Kyrou and McLeish JJA); Neat (2012) 34 VR 318, 320 [6] (Mandie JA and Cavanough AJA); [2012] VSCA 65; ASEA 1 Pty Ltd v Rudyard Pty Ltd [2020] VSCA 122, [12] (Kaye and McLeish JJA).
In exercising its jurisdiction to grant a stay, the court has a wide discretion, and all relevant factors should be taken into account. The prospect that, in the absence of a stay, an appeal may be rendered nugatory, must be balanced against the principle that the successful party in litigation is entitled to the fruits of the judgment.[36]
[36]Cross Country [2015] VSCA 347, [87] (Kyrou and McLeish JJA); Maher [2008] VSCA 122, [27] (Dodds-Streeton JA).
A stay should not be granted unless there is at least an arguable ground of appeal.[37] However, as this Court noted in Neate:[38]
In an application for a stay of the judgment of a case in which the facts were detailed and complex, this Court ordinary does not have the evidentiary materials necessary to consider the merits of the grounds of appeal in any detail. In such a case, unless it appears that there is no reasonable ground of appeal, or that the appeal is not bona fide, the Court will generally focus on the matters relevant to the enforcement of the judgment, rather than its validity.[39]
[37]Maher [2008] VSCA 122, [27] (Dodds-Streeton JA); Neate (2012) 34 VR 318, 320–321 [8] (Mandie JA and Cavanough AJA); [2012] VSCA 65.
[38]Maher [2008] VSCA 122, [27] (Dodds-Streeton JA); Neate (2012) 34 VR 318, 320–321 [8] (Mandie JA and Cavanough AJA); [2012] VSCA 65.
[39]See also Cross Country [2015] VSCA 347, [90] (Kyrou and McLeish JJA).
Analysis and conclusion
In applying those principles, the starting point is a consideration of whether any of the grounds of appeal, sought to be relied on by the applicant, are arguable. As we have noted, Mr Rubenstein, quite fairly, accepted that the grounds are sufficiently arguable for the purposes of the present application. For the reasons that follow, we consider that that concession was appropriate.
In the present case, the issue is not straightforward. A number of the matters, which are raised by the proposed grounds of appeal, and, in particular, grounds 1 and 2, will ultimately involve an examination and analysis of the evidence adduced before the primary judge. In that respect, the applicant, the second respondent and Ms Cui each gave detailed evidence before the Associate Justice. In particular, the second respondent was subjected to quite lengthy cross-examination.
The issues raised by each of the proposed grounds of appeal, and, as we stated, in particular grounds 1 and 2, principally involve questions of fact. That consideration, of itself, is not necessarily an insuperable obstacle to the success of the applicant on the proposed appeal. Ultimately, the Court will be required, by way of conducting a rehearing, to assess for itself the evidence that was adduced before the Associate Justice, while keeping in mind, and making due allowance for, the advantages experienced by the Associate Justice in hearing, and assessing the credibility of, each of those witnesses.[40]
[40]Warren v Coombes (1979) 142 CLR 531, 551 (Gibbs ACJ, Jacobs and Murphy JJ); [1979] HCA 9; Fox v Percy (2003) 214 CLR 118, 126–128 [25]–[29] (Gleeson CJ, Gummow and Kirby JJ); [2003] HCA 22.
In that respect, it is relevant that the primary judge made positive credit findings in favour of the second respondent and Ms Cui, and adverse credit findings concerning the evidence given by the applicant. A number of the matters, which are now relied on in support of grounds 1 and 2, are directed to findings of fact that were favourable to the respondent, and which were based, wholly or partly, on the primary judge’s assessment of the credit of the witnesses. They include the following submissions made in the applicant’s written case: that Efthim AsJ erred in concluding that the applicant’s poor work performance was the basis of the termination of his employment, and that his Honour should have concluded that his employment was terminated because the second respondent wished to avoid the applicant scrutinising her management of the company; that the Associate Justice erred in concluding that the wages, paid to the second respondent’s husband, were appropriate remuneration for the work that he performed, notwithstanding the absence of time sheets or other supporting evidence; that the Associate Justice erred by concluding, that the significant reduction of the applicant’s salary, and the substantial increase of the second respondent’s salary, was justifiable, and by failing to conclude that the second respondent was, in fact, conducting the affairs of the company so as to prefer her interests over those of the applicant; that the Associate Justice erred in concluding that the withdrawals by the second respondent of amounts of at least $115,044 from the company’s bank account constituted repayment of loans advanced by the second respondent to the company, in circumstances in which there was no evidence to support the making of those loans; and that the Associate Justice erred in concluding that it was reasonable for the second respondent to cause the company to make payments of approximately $50,000 for expenses related to her family car.
As we have noted, each of those findings, which are sought to be impugned, involved the Associate Justice assessing the respective evidence and the witnesses, and their credibility and reliability. That consideration will, necessarily, act as a constraint on a consideration, by the appellate court, of the issues raised by the applicant, and, in particular, those that are sought to be advanced under grounds 1 and 2.
Nevertheless, and notwithstanding that limitation, we are not persuaded that the proposed grounds of appeal, sought to be relied upon by the applicant, are not sufficiently arguable to justify the grant of a stay.
Further, the matters, that are sought to be advanced under ground 4, are, to some extent at least, based on facts that were the subject of admission by the second respondent in her evidence. In particular, in that respect, the applicant will seek to rely on: the provision, by the second respondent, of incorrect financial records to the CBA in order to disguise the company’s true financial position; the lodgement, by the second respondent, of incorrect Business Activity Statements with the Australian Taxation Office that under-reported the first respondent’s sales; and the conduct of the company, under the direction of the second respondent, in contravening ss 45 and 293 of the Fair Work Act, by paying certain employees less than the applicable minimum wage, and by failing to pay superannuation in respect of their wages.
Taking those matters into account, and, in addition, the irretrievable breakdown in the relationship between the applicant and the second respondent, it may be concluded, on the limited materials available, that the matters raised by ground 4 are sufficiently arguable.
If the application for a stay is not granted in the present case, then it is probable that the bankruptcy proceedings that have been commenced against the applicant, and the proceeding for the winding up of HGPY, will each be proceeded with. If, ultimately, the applicant were to succeed on the appeal in the present matter, the basis, for both the bankruptcy proceeding and the winding up proceeding against HGPY, will no longer exist. Further, as deposed by the applicant, if the respondents succeed in bankrupting him, and in winding up HGPY, his capacity to proceed with the appeal in the present matter will be compromised. In those circumstances, there is at least a reasonable prospect that, if a stay were not granted in the present case, the appeal may be rendered nugatory.
The countervailing consideration is that, if a stay is granted, the respondents would be precluded from accessing the fruits of the judgment of the Associate Justice, at least until after the conclusion of the appeal. In that respect, it is relevant that the respondents have not deposed that, if a stay is granted, they would not be able to afford appropriate representation on the hearing of the appeal. Further, in that respect, it is also relevant that the first respondent is indebted to HGPY in the sum of $360,152.62, and it is at least arguable that they be set off by HGPY against its liability to the first respondent in respect of the costs order in the present case.
As we have noted, in the course of submissions, Mr Rubenstein contended that, as HGPY is not a party to the application for leave to appeal, the Court should not make an order staying execution of the costs order made by Efthim AsJ against it. The point made by Mr Rubenstein does have some substance. Nevertheless, if ultimately the applicant does succeed on the application for leave to appeal, it is reasonable to expect that, subject to other considerations, the order for costs made by Efthim AsJ may be set aside, not only against the applicant, but also against HGPY.
In the course of oral submissions, we did raise with the applicant some of the difficulties which may arise on the application for leave to appeal, if HGPY is not a party to it. It is important that the applicant give serious consideration to those matters, and seek appropriate advice concerning them.
We do not consider that the circumstance that the applicant is seeking a stay of orders for costs, and that he is not seeking a stay of any substantive orders made by the primary judge, to be of particular concern in the present case. The costs order is a substantial burden for the applicant. As we have noted, if he ultimately succeeds on the application for leave to appeal and the appeal, that order will in all probability be set aside.
It is a matter of some concern that the applicant is not a registered proprietor of the family home in Bentleigh East. Nevertheless, he has maintained that he has an equitable interest in it, arising from the contributions that he has made to the purchase price, and to the mortgage payments, in respect of it. On the hearing of submissions, he made a formal undertaking to the Court that, if a stay is granted, he will not dispose of or further encumber his interest in the property. That undertaking would provide some, albeit limited, security to the respondents in respect of the costs order should ultimately the application for leave to appeal fail.
Taking those matters into account, we have reached the conclusion that, in the circumstances of this case, it is appropriate to grant the application for a stay of the costs orders by the Associate Justice, but subject to an appropriate undertaking by the applicant not to dispose of, or further encumber, his interest in the property at 48 Deakin Street, Bentleigh East.
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SCHEDULE OF PARTIES
RAYMOND BING HU Applicant and H & Q CAFÉ PTY LTD (ACN 624 852 179) First Respondent XIN QIU (also known as CINDY QIU) Second Respondent HOSTEC HOMES PTY LTD (ACN 139 620 723)
ATF SJS FAMILY TRUST
Third Respondent
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9
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