Kakavas v Crown Melbourne Limited - [2010] VSCA 102

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCI 2009 3907

HARRY KAKAVAS
	Applicant
v
CROWN MELBOURNE LIMITED (ACN 006 973 262) & ORS	Respondents

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JUDGES:	WARREN CJ and BONGIORNO JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 April 2010
DATE OF JUDGMENT:	30 April 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 102

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APPLICATION ON SUMMONS

APPEAL – Notice of Appeal filed for stay of execution of judgment pursuant to Rule 64.25 - Discretion - Exceptional or special circumstances required to be demonstrated to justify a grant of a stay - Narain v Euroasia (Pacific) Pty Ltd [2008] VSCA 195 – Impecuniosity and potential bankruptcy – Loss of ‘business reputation’ – Exceptional circumstances not made out.

PRACTICE AND PROCEDURE - Application for expedition of hearing of appeal – Requirements for expedition not demonstrated – Elders Rural Finance Ltd v Smith (1995) 38 NSWLR 395 – Order for security for costs pursuant to Rule 64.24(2).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A Myers QC with Mr P Zappia	Strongman & Crouch
For the Respondent	Mr N Young QC with Mr N Hopkins	Minter Ellison

WARREN CJ:

I invite Bongiorno JA to deliver the first judgment.

BONGIORNO JA:

On 8 December 2009 Harper J in the Trial Division determined a proceeding in which Harry Kakavas sued Crown Melbourne Limited and two of its employees for damages being losses incurred by him in gambling at their Casino between June 2005 and August 2006. His claim was $20.5M and Crown, for its part, counter‑claimed against Mr Kakavas for $1M.

Mr Kakavas’ claim against Crown was based on s 51AA and to a lesser extent s 52 of the Trade Practices Act1974. He alleged that his gambling losses had been caused by unconscionable conduct on the part of Crown and/or by its having engaged in misleading and deceptive conduct. His claim against the other defendants was based on their alleged liability as accessories to Crown’s conduct.

Mr Kakavas was a serious gambler. On his own admission he gambled and lost millions of dollars in casinos in many parts of the world. He became a patron at Crown not long after it opened in 1994. His case against Crown was that he was a gambling addict, that such addiction was a known medical condition which constituted a ‘special disability’ (as that term has been used in cases such as Commercial Bank of Australia Ltd v Amadio[1] and Blomley v Ryan[2]) and which placed him at a material disadvantage in dealing with Crown. He claimed that Crown knew of that disability and acted unconscionably in taking advantage of it by continuing to gamble with him. His case involving s 52 of the Trade Practices Act was that Crown offered him gambling facilities when he was, in fact, a prohibited person as far as its casino was concerned and could not legally keep his winnings if he was successful. Crown’s counter claim for $1M was a debt claim for money…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] VSCA 102
Decision Date: 30 April 2010

CaseChat Overview and Summary

The appeal in Kakavas v Crown Melbourne Limited concerned an application for a stay of execution of judgment and an expedited hearing of the appeal. The case was heard in the Court of Appeal in Victoria. The applicant, Mr Kakavas, sought to stay the enforcement of a judgment debt owed to the respondent, Crown Melbourne Limited, due to his impecuniosity and potential bankruptcy. He also requested an expedited hearing of his appeal on the grounds that he would suffer irreparable harm if the judgment was enforced before the appeal was heard.

The legal issues before the court were whether the applicant had demonstrated exceptional or special circumstances to justify a stay of execution of the judgment and whether the requirements for an expedited hearing had been met. The court considered the principles set out in Narain v Euroasia (Pacific) Pty Ltd and Elders Rural Finance Ltd v Smith in determining whether the applicant's circumstances were exceptional enough to warrant a stay of execution. Additionally, the court considered whether the applicant had demonstrated that the requirements for an expedited hearing were met.

The court found that the applicant had not demonstrated exceptional or special circumstances to justify a stay of execution of the judgment. While the applicant's impecuniosity and potential bankruptcy were relevant considerations, they did not amount to exceptional circumstances. The court also found that the applicant had not demonstrated the requirements for an expedited hearing as set out in Elders Rural Finance Ltd v Smith. Consequently, the court dismissed the application for a stay of execution and the application for an expedited hearing. The court did, however, order the applicant to provide security for the respondent's costs of the appeal.

In conclusion, the Court of Appeal held that the applicant had not demonstrated exceptional or special circumstances to justify a stay of execution of the judgment or the requirements for an expedited hearing of the appeal. The court dismissed both applications and ordered the applicant to provide security for the respondent's costs of the appeal.

Orders