Sameh Refaat v Michael Barry

[2016] VSCA 189

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2014 0066

SAMEH REFAAT	Appellant
v
MICHAEL BARRY	Respondent

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JUDGES:	WARREN CJ, ASHLEY and TATE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	5 August 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 189

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PRACTICE AND PROCEDURE – Appeal – Stay of execution – Whether exceptional circumstances shown – No point of principle.

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APPEARANCES:	Counsel	Solicitors
No appearances.

WARREN CJ:
ASHLEY JA:
TATE JA:

1. The Court delivered judgments[1] and made final orders in this proceeding on 20 August 2015 and 29 September 2015.  We will not revisit the facts and findings save to say that the appeal was dismissed with costs.

   [1]Refaat v Barry [2015] VSCA 218; Refaat v Barry (No 2) [2015] VSCA 268.

1. Since the orders were made, the appellant has made a successful application to the County Court (the original jurisdiction) for payment of the judgment sum by instalments.   Further, he has commenced a new separate proceeding in the Victorian Civil and Administrative Tribunal in the name of his company, Simplex Factory Automation Pty Ltd.  That proceeding concerns subject matter related to that considered in the appeal judgment.

1. The appellant now seeks a stay of execution of the orders of this Court pending the outcome of the new proceeding in the Tribunal.  The respondent opposes the application.

1. We note at the outset that the granting of a stay after judgment is exceptional.  We are not satisfied that the necessary circumstances have been made out by the appellant.  There are compelling reasons.

1. First, the application is made after quite some delay since the Court’s orders — some seven months — without any satisfactory explanation for such delay. 

1. Secondly, given the appellant has been granted the indulgence of time to pay instalments in the County Court, it would be wrong and quite contradictory to grant a stay.  We note he elected to apply for the instalment order.

1. Thirdly, in so far as a new claim has been made by Simplex, it does not relate to the appellant’s personal liability to the respondent in this proceeding.  For the reasons set out in our substantive judgment, that liability stands.  Although the appellant intends to be joined as a co-plaintiff in the Tribunal proceeding to seek settlement of the partnership accounts, again this does not bear on his personal liability to the respondent as established by our substantive judgment.

1. We refuse the application.