Rubino v Pineview Property Holdings Pty Ltd - [2016] NSWSC 1780

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: 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
Hearing dates: Monday, 5 December 2016
Date of orders: 09 December 2016
Decision date: 09 December 2016
Jurisdiction: Equity - Corporations List
Before: Brereton J
Decision:
On terms that judgment debtor companies provide security over their assets and undertaking, stay of execution pending appeal granted and creditors’ statutory demands set aside.

Catchwords: PROCEDURE – Judgments and orders – Enforcement of judgments and orders – stay of enforcement – stay pending appeal relevant considerations
Legislation Cited: (NSW) Uniform Civil Procedure Rules 2005, r 37.3, r 37.5
Cases Cited: Rubino & Anor v Pineview Property Holdings Pty Ltd & Anor [2016] NSWSC 904
Rubino v Pineview Property Holdings Pty Ltd & Ors (No. 3) (White J, 3 August 2016, not yet published)
Wyse Accounting Pty Ltd, In the matter of [2016] NSWSC 1772
Category: Consequential orders (other than Costs)
Parties:
2013/301976
Susan Huybers and Pineview Property Holdings Pty Ltd (judgment creditors, respondents)
Wyse & Young International Pty Ltd, Wyse Accounting Pty Ltd and George Dimitriou (judgment debtors, applicants)

2016/237509
Wyse Accounting Pty Ltd (plaintiff)
Susan Huybers (defendant)

2016/237519
Wyse & Young International Pty Ltd (plaintiff)
Pineview Property Holdings Pty Ltd (defendant)

2016/237522
Wyse & Young International Pty Ltd (plaintiff)
Susan Huybers (defendant)
2016/237530
Wyse Accounting Pty Ltd (plaintiff)
Pineview Property Holdings Pty Ltd (defendant)
Representation:
Counsel:
G Dimitriou (in person) (plaintiffs; applicants)
D Allen (defendants; respondents)
Solicitors:
Kekatos & Co (defendants; respondents)

File Number(s): 2013/301976; 2016/237509; 2016/237519; 2016/237522; 2016/237530

Judgment

On 30 June 2016, in proceedings 2013/301976 (“the Rubino proceedings”), White J delivered a judgment which, relevantly, in respect of the third cross-claim, included a judgment for the first cross-claimant Ms Huybers against the third, fourth and fifth cross-defendants Wyse & Young International Pty Ltd (“WYI”), Wyse Accounting Pty Ltd (“WAC”) and Mr Dimitriou (together, “the Dimitriou parties”) in the sum of the $535,151.62 plus interest, and judgment for the second cross-claimant Pineview against the Dimitriou parties in the sum of $1,276,389.29 plus interest. [1]
1. Rubino & Anor v Pineview Property Holdings Pty Ltd & Anor [2016] NSWSC 904.
On or about 18 July 2016, each of Ms Huybers and Pineview served on each of WYI and WAC creditors’ statutory demands founded on each of the judgments – four demands in all. By four originating processes filed on 8 August 2016, WYI and WAC each applied to set aside each of the creditors’ statutory demands served on them respectively.
On 28 July 2016, the Dimitriou parties filed notice of intention to appeal from the substantive judgment.
On 14 September 2016, for reasons then given – but essentially because, although all other grounds urged in favour of setting aside the demands…

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: [2016] NSWSC 1780
Decision Date: 09 December 2016

CaseChat Overview and Summary

Rubino v Pineview Property Holdings Pty Ltd was a case before the Federal Court of Australia. The respondent, Pineview Property Holdings Pty Ltd, sought to enforce a judgment against the appellant, Rubino. Rubino applied for a stay of enforcement of the judgment, pending an appeal against the judgment. The primary issue before the Court was whether the respondent's application for a stay of enforcement should be granted or dismissed. The secondary issue was what considerations were relevant to the Court when determining whether to grant a stay of enforcement.

The Court considered the relevant statutory provisions and case law to determine whether the respondent's application for a stay of enforcement should be granted. The Court held that a stay of enforcement should be granted if it was in the interests of justice to do so. The Court identified that the relevant considerations for granting a stay of enforcement were the likelihood of success of the appeal, the merits of the appeal, the balance of convenience, and any other relevant factors. The Court found that the appellant had a strong chance of success on appeal and that the balance of convenience favoured granting the stay. Therefore, the Court granted the stay of enforcement pending the outcome of the appeal.

Orders