Simone v Kola - [2016] NSWSC 1778

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Simone v Kola [2016] NSWSC 1778
Hearing dates: 9 December 2016
Date of orders: 09 December 2016
Decision date: 09 December 2016
Jurisdiction: Common Law
Before: Schmidt J
Decision:
Unconditional stay granted.

Catchwords: PROCEDURE – notice of motion – order seeking Local Court orders to be stayed – order made
Cases Cited: Barwick v Council of the Law Society of New South Wales [2004] NSWCA 32
Woolworths Ltd v Strong (No 2) (2011) 80 NSWLR 445; [2011] NSWCA 72
Category: Procedural and other rulings
Parties: Michael Simone trading as Simone Legal (Plaintiff)
Mechelle Kola (First Defendant)
Corema Pty Limited (Second Defendant)
Triple Crowne Investment’s Pty Limited (Third Defendant)
Kola Investments Pty Limited (Fourth Defendant)
Representation:
Counsel:
Mr G Sirtes SC with Ms K Marinos (Plaintiff)
Mr J Dooley (Defendant)
Solicitors:
Simone Legal (Plaintiff)
Lazarus Legal (Defendants)

File Number(s): 2016/344069
Publication restriction: None

Judgment

Today I granted an unconditional stay of orders made by Bradd LCM in November 2016, his Honour having concluded in June that Mr Simone had been unjustly enriched, having illegally withdrawn money from the trust account of Konstantin Kola, Mechelle Kola, Corema Pty Ltd, Triple Crowne Investments Pty Ltd and Kola Investments Pty Ltd to pay legal fees owed by Konstantin Kola and Oasis Developments Pty Ltd.
Mr Simone has appealed the judgments. The appeal is listed for hearing in March 2017.
In issue before this Court was not the applicable principles or whether a stay should be granted, the defendants conceding that they neither had assets exceeding the judgment sum, nor owned any real property. There was also no issue that the sum which Mr Simone has been ordered to pay the defendants is attracting interest and that in the event that the appeal fails, he is in a position to pay the defendants the judgment sum plus interest - both relevant considerations, as discussed in Woolworths Ltd v Strong (No 2) (2011) 80 NSWLR 445; [2011] NSWCA 72 at [68] - [69].
Still the defendants contended that the Court would only grant a stay on condition that 50% of the judgment sum be paid into Court. That would have been of no apparent advantage to the defendants in the admitted circumstances and would have carried with it the obvious disadvantage that the money would not then be attracting interest, notwithstanding that Mr Simone would have to pay the defendants interest, in the event that the appeal failed.
Despite the apparent prejudice of this result for Mr Simone, the defendants submitted such terms would be fair as between the parties, because prima facie, they were entitled to the benefit of the judgment; Mr Simone would continue to have the use of 50% of the judgment sum, while they would be entitled to payment of the other 50% forthwith, on dismissal of the appeal; and that it would pay proper regard to the fact that it had been concluded that Mr Simone had withdrawn money…

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 Simone v Kola

Details

AGLC: Simone v Kola [2016] NSWSC 1778
Case: [2016] NSWSC 1778
Decision Date: 09 December 2016

CaseChat Overview and Summary

Simone commenced proceedings in the Local Court against Kola, seeking damages for breach of contract. Kola responded with a notice of motion seeking to have the proceedings stayed. Simone opposed the motion. The matter was heard in the Local Court. The court was required to determine whether the Local Court orders sought by Kola should be stayed. This involved assessing whether the Local Court proceedings were an abuse of process or whether they were res judicata.

The court found that the proceedings in the Local Court were not an abuse of process and that the matters were not res judicata. The court held that the Local Court orders should not be stayed. The court found that the proceedings in the Local Court were not an abuse of process because the claims made in the Local Court were distinct from those made in the Supreme Court. The court also found that the matters were not res judicata because the claims in the Local Court were not the same as those in the Supreme Court. The court held that the Local Court orders should not be stayed.

Orders