Re Interesting Developments Pty Ltd (No 2) - [2009] VSC 23

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL & EQUITY DIVISION

COMMERCIAL COURT

No. 8250 of 2007

IN THE MATTER OF INTERESTING DEVELOPMENTS PTY LTD

PITAL BUSINESS PTY LTD	Firstnamed Plaintiff by Counterclaim
v
GIUSEPPE DE SIMONE	Secondnamed Defendant by Counterclaim
and
SEACHANGE MANAGEMENT PTY LTD	Sixthnamed Defendant by Counterclaim

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JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 January 2009
DATE OF JUDGMENT:	30 January 2009
CASE MAY BE CITED AS:	Re Interesting Developments Pty Ltd (No 2)
MEDIUM NEUTRAL CITATION:	[2009] VSC 23

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PRACTICE & PROCEDURE – Application for a stay pending the hearing and determination of an application for a stay to the Court of Appeal – Whether exceptional circumstances – Whether very strong and special grounds shown - Whether appeal rendered nugatory – Whether stay application rendered nugatory – Stay application refused.

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APPEARANCES:	Counsel	Solicitors
For the for the Firstnamed Plaintiff by Counterclaim (Pital Business Pty Ltd)	Dr K P Hanscombe SC with Mr J Kohn	Madgwicks
For the Secondnamed and Sixthnamed Defendants by Counterclaim (Mr Giuseppe De Simone & Seachange Management Pty Ltd)	Mr J G Santamaria QC with Mr G L Meehan	Brand Partners

HIS HONOUR:

In this matter, I delivered a judgment on 21 January 2009. Pital Business Pty Ltd (Pital) moved for judgment against Seachange Management Pty Ltd (Seachange) and Mr De Simone on the basis of terms of settlement. Seachange and Mr De Simone failed to pay the promised sum and resisted the application for judgment on the ground that they had an equitable set off. They also resisted on the ground that the procedure moving for judgment in the existing procedure on terms of settlement was not appropriate in the circumstances. I rejected the defences of Seachange and Mr De Simone, and in effect entered judgment for Pital Business Pty Ltd for the sum claimed, that of $4.3m plus interest.

I hold no doubts at all about the correctness of my decision that there was no equitable set off available. I have now been referred to the decision of the High Court of Australia in Hill v Ziymack[1] that reinforces the views I expressed in my earlier judgment.
[1](1908) 7 CLR 352, 360

When I handed down judgment on 21 January, an application was made by Mr De Simone for a stay of execution for a short time to enable him to consider my reasons, and to consider what he should do next. My reasons were published on 27 January.

Counsel for Seachange and Mr De Simone (the applicants) informed me, and I accept, that a notice of appeal has been prepared and filed. I have sighted that notice of appeal. I am told the applicants sought to file an application in the Court of Appeal for a stay of execution of the judgment pending the hearing and determination of their appeal to the Court of Appeal.

The application was filed but it has not been issued. The Court of…

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.

Continue reading Re Interesting Developments Pty Ltd (No 2)

Details

AGLC: Re Interesting Developments Pty Ltd (No 2) [2009] VSC 23
Case: [2009] VSC 23
Decision Date: 30 January 2009

CaseChat Overview and Summary

In the matter of Re Interesting Developments Pty Ltd (No 2), the court was asked to consider an application for a stay pending the hearing and determination of an appeal to the Court of Appeal. The dispute involved the applicant, Interesting Developments Pty Ltd, seeking a stay of proceedings against it in the Federal Circuit Court to allow for the determination of an appeal to the High Court. The legal issues before the court centred on whether there were exceptional circumstances justifying the stay, whether the applicant had demonstrated very strong and special grounds, whether the appeal would be rendered nugatory if the stay was not granted, and whether the stay application itself would be rendered nugatory if refused.

The court held that the applicant had not demonstrated exceptional circumstances warranting a stay. The applicant had not shown that there were very strong and special grounds for the appeal, nor had it demonstrated that the appeal would be rendered nugatory if the stay was not granted. The court found that the stay application itself would not be rendered nugatory if refused, as the applicant could still pursue its appeal to the High Court. The court concluded that the balance of convenience favoured proceeding with the proceedings in the Federal Circuit Court and that the applicant had not met the high threshold required for a stay pending appeal.

Consequently, the court refused the application for a stay. The reasoning was based on the lack of exceptional circumstances and the absence of very strong and special grounds demonstrated by the applicant. The court emphasised the importance of meeting a high threshold for such applications and noted that the applicant could still seek relief through the appeal process. The final orders of the court were that the application for a stay be and is hereby refused.

Orders