Rubino v Pineview Properties Pty Ltd (No 6) - [2018] NSWSC 340

Supreme Court

New South Wales

Medium Neutral Citation: Rubino v Pineview Properties Pty Ltd (No 6) [2018] NSWSC 340
Hearing dates: 6 March 2018
Date of orders: 19 March 2018
Decision date: 19 March 2018
Jurisdiction: Equity
Before: Parker J
Decision:
Application to stay execution of judgments dismissed.

Application to stay costs, and freezing orders dismissed.
Application to further amend “Second Amended Notice of Motion” dated 5 March 2018 dismissed.
Catchwords:
PRACTICE AND PROCEDURE – stay of execution of judgments – whether realistic prospect that proposed appeal will succeed – whether prejudice arising from execution of judgments established – where judgments entered against defendant are for high amounts of moneys plus interest – no identification of aspects of reasoning of judges that are in error – no arguable basis for identifying error with reasoning of judges shown – no evidence defendant is incapable of meeting judgments – no undertaking from defendant to provide security for judgments – application for stay of execution of judgements dismissed

COSTS – application to stay costs – where costs orders have not been quantified – where stay of costs not possible until costs assessor certificate has been issued – no evidence costs assessment proceedings have begun – question of stay of costs cannot then arise – application dismissed

COSTS – application to stay freezing order – where freezing order made in execution of judgments – “order is not itself an order for execution and a stay is therefore inappropriate” – whether defendant has demonstrated any basis for suspension or discharge of freezing order – no evidence defendant would not attempt to move assets beyond reach of judgment creditors – application dismissed
PRACTICE AND PROCEDURE – Application to amend notice of motion – where applicant proposes insertion of additional orders into notice of motion – proposed amendments are substantive – application dismissed
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 21, 22
Competition and Consumer Act 2010 (Cth), Sch 2, s 20
Cases Cited: Dimitriou v Huybers [2017] NSWCA 252
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89
In the matter of Estate Rubino v ANZ Banking Group Ltd [2018] NSWSC 121
Rubino & Anor v Pineview Property Holdings Pty Ltd & Ors [2016] NSWSC 904
Rubino v Pineview Property Holdings Pty Ltd & Ors (No 2) [2016] NSWSC 1050
Rubino v Pineview Property Holdings Pty Ltd & Ors (No 3) (Unreported, Supreme Court of New South Wales, White J, 3 August 2016)
Rubino & Anor v Pineview Property Holdings Pty Ltd & Ors; In the matter of Wyse Accounting Pty Ltd; In the matter of Wyse & Young International Pty Ltd; In the matter of Wyse & Young International Pty Ltd; In the matter of Wyse Accounting Pty Ltd [2016] NSWSC 1780
Category: Procedural and other rulings
Parties: George Dimitriou (Applicant)
Pineview Property Holdings Pty Ltd (First Respondent)
Susan Elizabeth Huybers (Second Respondent)
Representation:
Counsel:
D Allen (Respondents)

Solicitors:
Kekatos Lawyers (Respondents)
In person:
G Dimitriou (Applicant)

File Number(s): 2013/301976
Publication…

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: [2018] NSWSC 340
Decision Date: 19 March 2018

CaseChat Overview and Summary

Rubino initiated legal proceedings against Pineview Properties Pty Ltd, seeking a stay of execution on judgments entered against Pineview in significant amounts, along with interest, as well as an application to stay costs and a freezing order. The application was heard in the Federal Court of Australia. The court was required to determine whether there was a realistic prospect that a proposed appeal would succeed and if executing the judgments would cause prejudice to Pineview. Additionally, the court needed to consider if there was a basis to stay the costs and whether the freezing order could be suspended or discharged.

The court found that the applicant had not identified any aspects of the judges' reasoning that were in error, nor had they provided an arguable basis for identifying such errors. Furthermore, there was no evidence presented that Pineview was incapable of meeting the judgments or that it had made an undertaking to provide security for the judgments. As a result, the application for a stay of execution was dismissed. The court also dismissed the application to stay costs as the orders had not been quantified, and a stay was not possible until a costs assessor's certificate had been issued. The application to stay the freezing order was dismissed because the order was not an execution order, and Pineview had not demonstrated any basis for its suspension or discharge.

The court ultimately dismissed the application to amend the notice of motion, as the proposed amendments were substantive in nature. This decision highlights the stringent requirements for staying execution of judgments, staying costs, and discharging freezing orders, emphasizing the necessity for clear evidence of both a realistic prospect of appeal success and potential prejudice without execution.

Orders