Lesses v Maras (No 2)

Case [2016] SASC 140

Supreme Court of South Australia

(Civil: Application)

LESSES v MARAS (NO 2)

[2016] SASC 140

Judgment of The Honourable Justice Doyle (ex tempore)

18 August 2016

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA

The respondent successfully sued the appellant in defamation. The appellant commenced an appeal, and the respondent sought and was granted security for costs. The appellant now seeks a stay of execution of the judgment and costs order pending the determination of the appeal.

Held (per Doyle J), granting the application:

1.       Proper reason to grant a stay of execution pending appeal exists.

Supreme Court Civil Rules 2006 (SA) r 300; Enforcement of Judgments Act 1991 (SA) s 17; Bankruptcy Act 1966 (Cth) s 120, s 121; Law of Property Act 1986 (SA) s 86, referred to.
Lesses v Maras [2016] SASC 117; Philip Morris (Australia) Ltd v Nixon [1999] FCA 1281; Technilock (Aust) Pty Ltd v Mondami Pty Ltd [1999] SASC 94; Landmark Operations Ltd v J Tiver Nominees Pty Ltd [2009] SASC 14; Ryan v Urban Construct (SA) Pty Ltd (No 2) (2012) 114 SASR 410; Essential Beauty Franchising (WA) Pty Ltd v Pilton Holdings Pty Ltd (No 3) [2014] SASC 148; Wu v Li [2014] FCA 297; Re Geard; Ex Parte Reid (1994) 217 ALR 191; Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264; Burns v AMP Finance Ltd [2004] FCA 1094, considered.

LESSES v MARAS (NO 2)
[2016] SASC 140

Civil

DOYLE J (ex tempore):

  1. The plaintiff (Mr Maras) brought defamation proceedings against the defendant (Mr Lesses).  Those proceedings were successful, and on 21 April 2016 the Court entered judgment in favour of the plaintiff in the amount of $75,000.  On 15 June 2016, the Court ordered that the defendant pay 90 per cent of the plaintiff’s costs of the action on an indemnity basis.

  2. The defendant has appealed both orders, and on 26 July 2016 I ordered that the defendant provide security for the plaintiff’s costs of that appeal by way of payment of $25,000 into Court.[1]  The payment of security has been made.  However, the defendant has not paid the plaintiff anything towards the judgment sum or the costs order.

  3. The defendant now seeks a stay of execution of the judgment and costs order pending the hearing and determination of his appeal.  These are my reasons on the stay application.

    Principles governing a stay of execution pending appeal

  4. Under r 300 of the Supreme Court Civil Rules 2006 (SA), while an appeal does not operate to stay execution of a judgment pending appeal, the Court may grant a stay “for any proper reason.”  An equivalent power exists under s 17 of the Enforcement of Judgments Act 1991 (SA).

  5. The principles governing the grant of a stay of execution pending appeal are well known, and are not in dispute. 

  6. In short, the…

Continue reading Lesses v Maras (No 2)

Sign in free to access the full text

Details
AGLC
Lesses v Maras (No 2) [2016] SASC 140
Case
[2016] SASC 140
Decision Date

CaseChat Overview and Summary

The case of Lesses v Maras (No 2) involved a dispute between Lesses and Maras, which was heard in the Federal Circuit Court of Australia. The matter pertained to an appeal against a judgment and costs order, and the primary focus was on the procedural aspects of the case, specifically regarding the stay of execution and the extension of time for compliance with a bankruptcy notice. The appellant, Maras, sought to appeal the decision, and the primary issue before the court was whether to grant a stay of execution pending the appeal and whether to extend the time for compliance with the bankruptcy notice based on the judgment under appeal.

The court was required to consider the procedural rules governing stays of execution and the circumstances under which an extension of time might be granted in the context of a bankruptcy notice. The court also had to examine the precedents from the bankruptcy courts, which suggested that a stay of execution should be sought in the court hearing the appeal before any application to extend time for compliance with the bankruptcy notice based on the judgment under appeal. The court needed to weigh the failure to seek such a stay against the grant of an extension of time.

The court concluded that it was prepared to order a stay of execution of the judgment and costs order, pending the hearing and determination of the appeal. This decision was contingent upon the appellant providing certain undertakings to the court, including prosecuting the appeal with all reasonable diligence, transferring his interest in the matrimonial property to the respondent, refraining from dealing with his interest in the matrimonial property until further order of the court, and ensuring that the respondent's wife and sons do not deal with their interests in the family holiday property until further order of the court. The court also decided to hear the parties regarding the precise form of the undertakings, orders, and the issue of costs.

The final orders of the court were that a stay of execution would be granted on the conditions specified, and the matter was to be listed for further directions regarding the form of the undertakings, orders, and the issue of costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

DOYLE J
Further, this submission overlooks the statements in the authorities from the bankruptcy courts (mentioned above) indicating an expectation that a stay of execution will be sought in the court hearing the appeal prior to any application to extend time for compliance with a bankruptcy notice based upon the judgment under appeal, and that the failure to do so may weigh against the grant of an extension of time.Conclusion For the reasons set out, I am prepared to order a stay of execution of the judgment and costs order in these proceedings pending hearing and determination of the appeal, on condition that the defendant (and his wife and sons as relevant) provide undertakings to the following effect are proffered to the Court, namely: (i)that the defendant will prosecute his appeal with all reasonable diligence; (ii)that the defendant’s wife will forthwith execute and register in the Lands Title Office a memorandum of transfer effecting a transfer in favour of the defendant of a one half interest in the matrimonial property, with that property to then be held as tenants in common as to a 50 per cent interest each;(iii)that the defendant will not (and will give an undertaking to the Federal Circuit Court that he will not) transfer, mortgage, charge or otherwise deal with his interest in the matrimonial property until further order of the Court; and(iv)that the defendant’s wife and sons will not transfer, mortgage, charge or otherwise deal with their interests in the family holiday property until further order of the Court. I do not make it a condition of the stay that the defendant give any further undertaking in respect of the family holiday property. I will hear the parties as to the precise form of the undertakings and orders, and the issue of costs.

Ratio Decidendi

Legal Principle Established

Established by: DOYLE J

Full text does not contain this section.