Mondino v Djordjevic
[2018] NSWSC 673
•14 May 2018
Supreme Court
New South Wales
Medium Neutral Citation: Mondino v Djordjevic [2018] NSWSC 673 Hearing dates: 14 May 2018 Decision date: 14 May 2018 Jurisdiction: Common Law Before: Adamson J Decision: 1. Dismiss the notice of motion.
2. Order the plaintiff to pay the first defendant’s costs of the notice of motion.
3. Direct the parties to approach the Registrar forthwith for directions.Catchwords: PRACTICE AND PROCEDURE – application for stay of execution refused on the grounds of delay – restitution possible if plaintiff’s appeal to this Court successful Legislation Cited: Local Court Act 2007 (NSW) ss 39, 40 Category: Procedural and other rulings Parties: Mario Mondino (Plaintiff)
Stanche Djordjevic (First Defendant)
Local Court of New South Wales (Second Defendant)Representation: Counsel:
Solicitors:
Plaintiff (in person)
Ms Taouk (First Defendant)
File Number(s): 2018/147221
Judgment: EX TEMPORE
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By notice of motion filed on 1 May 2018, Mario Mondino (the plaintiff), who appears on his own behalf, seeks a stay of proceedings of a Local Court matter pending the determination of proceedings in the Supreme Court. Although the notice of motion seeks orders for a stay of proceedings, I understand from Mr Mondino’s oral submissions that he seeks a stay of execution of two judgments entered in the Local Court to which reference will be made below. Ms Taouk, who appears on behalf of Stanche Djordjevic (the defendant), opposes the stay of execution.
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A brief summary of the procedural history suffices for present purposes. Ms Djordjevic’s insurer commenced proceedings in her name in the exercise of its right of subrogation by filing a statement of claim in the Local Court on 9 February 2016. Ms Djordjevic alleged that Mr Mondino, her neighbour, had negligently conducted an illegal burn of dry, green waste on 26 December 2012 which had damaged her own property. The claim was defended by Mr Mondino.
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Following a contested hearing in the Local Court, judgment was entered on 18 October 2016 in favour of the plaintiff in the sum of $54,881.60. Ms Djordjevic’s insurer then proceeded to have the costs assessed. An assessment was received on 28 August 2017 and was registered as a judgment of the Local Court on 1 September 2017 in the sum of $24,000. The defendant then proceeded to seek to enforce the judgments and, to that end, filed a writ for levy of property which was issued on 28 November 2017 in respect of each of the two judgments, one being for the principal amount and the second being for the costs.
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Notice was given to Mr Mondino that the sheriff proposed to execute the writ for levy of the property.
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On 8 January 2018, the Local Court refused Mr Mondino's application to pay the judgment debts by way of instalment.
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On 10 January 2018, Mr Mondino filed a notice of motion in the Local Court in which he sought to challenge the judgments of the Local Court and, thereby, prevent the execution of the writs. That notice of motion came before Magistrate Keogh and was adjourned to 22 February 2018 to permit Mr Mondino to obtain legal advice.
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The motion came back before the Magistrate later in February 2018 at which point it was dismissed on the basis that Mr Mondino had sought to challenge the final judgment of Magistrate Pierce made on 18 October 2016 and the order for costs and that the Local Court could not entertain such an application as it was, in substance, an appeal.
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Mr Mondino filed two further notices of motion on 3 and 30 April 2018 respectively which were to the same effect as the first. The second and third notices of motion were rejected by the Local Court on the basis that they, in effect, sought the same relief that was refused by Magistrate Keogh in February 2018.
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On 10 May 2018, Mr Mondino filed a summons in this Court in which he sought to set aside the judgment of Magistrate Pierce entered on 18 October 2016.
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A party to proceedings before the Local Court may appeal to this Court on a question of law without leave pursuant to s 39 of the Local Court Act 2007 (NSW). A party to such proceedings may also appeal on a question of mixed law and fact by leave of this Court: s 40 of the Local Court Act. An appeal brought to this Court from the Local Court under these provisions is required to be brought within 28 days, although this Court has a power to extend time for parties to bring that appeal.
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The summons filed by Mr Mondino in this Court is listed for directions on 30 May 2018. I would estimate that it could be heard within a day and is likely to get a hearing date before the end of the year.
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Mr Mondino seeks a stay of the execution of the writs in the Local Court on the basis of his appeal in this Court. He wishes to retain possession of various items of property including a car which he expects, if no order for a stay is granted, will be seized by the sheriff tomorrow and sold.
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Ms Taouk, who appears on behalf of Ms Djordjevic, instructed by her insurer, has informed me that because the proceedings were conducted by the insurer in the exercise of its right of subrogation, there would be no difficulty in making restitution to Mr Mondino of any amounts received by the insurer in satisfaction of the judgments through sale of these goods if Mr Mondino's appeal to this Court was successful.
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Mr Mondino has sought, in part, to explain the delay in filing a summons in this Court on the basis that he was not aware that this Court was an appropriate jurisdiction which had power to hear any challenge to the judgment of the Local Court.
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Be that as it may, the chronology which I have set out above indicates that it was in effect only when the sheriff sought to execute the writ that Mr Mondino turned his mind to the procedural mechanisms by which he could defer or avoid satisfaction of the judgment debts. I am satisfied on the basis of what Ms Taouk has told me that Mr Mondino's rights will be protected in that if he is successful in his appeal, restitution can be made of any money sum realised by the sale of any goods seized by him.
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There has been very considerable delay by Mr Mondino since the judgment was entered in October 2016. Were I to grant a stay in accordance with his notice of motion, there would be even further delay in circumstances where restitution could be made if Mr Mondino was able to establish his claim for relief in this Court. I am not persuaded that it is in the interests of justice to order that execution of the judgments be stayed.
Orders
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For the reasons given above, I make the following orders:
Dismiss the notice of motion.
Order the plaintiff to pay the defendant’s costs of the notice of motion.
Direct the parties to approach the Registrar forthwith for directions.
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Decision last updated: 15 May 2018
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