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Sami v Roads Corporation

Sami v Roads Corporation

Case [2009] VSCA 44 20 February 2009

Stay of Proceedings

Costs

Appeal

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3870 of 2008

BOB SAMI and ROSHNI SAMI	1^st Applicant
BOB SAMI and ROSHNI SAMI	2^nd Applicant
v
ROADS CORPORATION	Respondent

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APPLICATION ON SUMMONS

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JUDGES:	REDLICH JA and WILLIAMS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 February 2009
DATE OF JUDGMENT:	20 February 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 44

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PRACTICE AND PROCEDURE – Application for stay of various costs orders that would be unaffected by outcome of appeal – Applicants seek to set off costs orders against possible costs order in their favour if appeal successful – Grant v Banque Franco-Egyptienne [1878] 3 CPD 202 applied – Whether threat of bankruptcy of applicants enough – Insufficient material to establish financial position of applicants – Supreme Court (General Civil Procedure) Rules 2005 (Vic) rr 64.25, 66.16.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr O Bigos	Ravi James & Associates
For the Respondent	Mr G G McArthur SC with Ms R M Doyle	DLA Phillips Fox

REDLICH JA:

I will ask Williams AJA to deliver the first judgment in this matter.

WILLIAMS AJA:

The application

The applicants seek a stay of costs orders made by Master Kings in relation to interlocutory applications in their ultimately unsuccessful proceeding against the respondent. They have given notice of an appeal in that proceeding but have not appealed from the Master's orders.

The application is made under r 64.25 of the Supreme Court (General Civil Procedure) Rules2005 (Vic). The relevant part of the rule is as follows:

64.25
Except so far as the Court of Appeal or a Judge otherwise orders -
(a)an appeal shall not operate as a stay of execution or of proceedings under the decision appealed from;

Counsel for the applicants concedes that the application should have been brought under r 66.16, given that the Master's orders are not the subject of any appeal. Rule 66.16 provides:

66.16
The court may stay execution of a judgment.

The applicants submit that, unless they are granted a stay of the costs orders, they will be bankrupted and prevented from prosecuting their appeal and from investigating or mounting a potential future challenge to what they characterise as a relevant ’decision‘ of an officer of the Commonwealth.

The material

Two affidavits of Mr Selvadurai Raveendran of the applicants’ solicitors have been filed in support of the application. There is no affidavit from either of the applicants. I note, in this regard, that the respondent's 18 February 2009 written submissions opposing the application criticised the applicants' affidavit material, arguing that there was insufficient evidence as to the financial situation of the applicants, neither of whom had gone on oath. That criticism was raised by the Court in the course of counsel for the applicants' oral submissions. Counsel for the applicants stated that the applicants could provide affidavits confirming those of their solicitor, but he did not produce any such material and no adjournment was sought for that purpose, or in order for the applicants to…

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 Sami v Roads Corporation

Details

AGLC: Sami v Roads Corporation [2009] VSCA 44
Case: [2009] VSCA 44
Decision Date: 20 February 2009

CaseChat Overview and Summary

The case of Sami v Roads Corporation involved the applicant, Sami, seeking a stay of various costs orders in the Magistrates' Court of Victoria. Sami sought to set off these costs against a potential costs order in their favour if their appeal was successful, arguing that they faced a threat of bankruptcy. The Roads Corporation opposed the application, contending that there was insufficient material to establish Sami's financial position and that the threat of bankruptcy alone was not enough to warrant a stay. The legal issues before the court were whether the threat of bankruptcy was sufficient grounds for a stay of costs orders and whether there was adequate material to support the application.

The court considered the principles established in Grant v Banque Franco-Egyptienne, where it was held that a party's financial position could be a relevant factor in determining whether to grant a stay of costs orders. However, the court held that the threat of bankruptcy alone was not sufficient to establish the necessary grounds for a stay. Additionally, the court found that there was insufficient material provided by Sami to demonstrate their financial position adequately. As a result, the application for a stay of the costs orders was dismissed.

The court's decision was based on the applicants' failure to provide sufficient material to establish their financial position and the lack of evidence to support that the threat of bankruptcy alone was enough to warrant a stay of costs orders. The court emphasised the importance of providing comprehensive evidence to support such applications, as outlined in the Supreme Court (General Civil Procedure) Rules 2005 (Vic) rr 64.25, 66.16.

The final orders of the court were that the application for a stay of the various costs orders was dismissed, with no orders as to costs.

Orders