Sirakas v Alstom Limited

[2012] NSWCA 203

Court of Appeal

New South Wales

Case Title:

Sirakas v Alstom Limited & Ors

Medium Neutral Citation:

[2012] NSWCA 203

Hearing Date(s):

25 June 2012

Decision Date:

25 June 2012

Jurisdiction:

Before:

Campbell JA

Decision:

(1) Notice of Motion dismissed with costs.
(2) Parties to approach Registrar promptly to obtain hearing date for appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL AND NEW TRIAL - stay of proceedings - stay sought based on the possibility of wasting expenditure if appeal were to succeed, and applicant's inability to afford expenditure - only evidence of applicant's inability to afford expenditure is solicitor's affidavit stating he is informed and believes applicant cannot afford to provide money - insufficient evidence to support assertion - application refused

Legislation Cited:

Cases Cited:

Texts Cited:

Category:

Interlocutory applications

Parties:

George Sirakas (Applicant)
Alstom Limited (First Respondent)
Alstom Power Romania SRL (Second Respondent)
Alstom General Turbo SA (Third Respondent)

Representation

- Counsel:

Counsel:
A Scotting (Applicant)
C Harris SC (Respondents)

- Solicitors:

Solicitors:
Verekers Lawyers (Applicant)
Colin Biggers & Paisley (Respondents)

File number(s):

2012/82854

Decision Under Appeal

- Court / Tribunal:

- Before:

White J

- Date of Decision:

15 February 2012

- Citation:

Alstom Limited & Ors v Sirakis (No. 2) [2012] NSWSC 64

- Court File Number(s)

2009/291651

Publication Restriction:

JUDGMENT

1. CAMPBELL JA: In late December 2009 three companies in the Alstom group of companies began proceedings in the New South Wales Supreme Court against Mr Sirakas. Mr Sirakas had been the managing director of one of the Alstom companies. His duties in that respect were carried out in Romania and other European countries. The proceedings alleged Mr Sirakas had in various ways misappropriated monies of the companies and perhaps also nonmonetary assets.

2. A notice of motion was taken out on 21 January 2010 objecting to the jurisdiction of the Court. Palmer J dismissed that motion on 23 June 2010. After some argument about the permissible scope of amendments to the statement of claim an amended statement of claim was filed on 1 April 2011. It altered the claims in various respects. On 7 April 2011 a notice of motion was filed that, amongst other things, objected to the jurisdiction of the Court once again.

3. That notice of motion was determined by White J on 15 February 2012. He held that New South Wales was not a clearly inappropriate forum in all the circumstances of the case. He held that various of the claims, though not all of the claims, that were sought to be brought by the Alstom companies were ones that were the subject of an agreement under which the New South Wales Courts would have exclusive jurisdiction. The existence of that clause tipped the balance, so far as his Honour was concerned - if it had not been for the clause he would have held that New South Wales was a clearly inappropriate forum, but with the clause he held the contention that New South Wales was clearly inappropriate had not been made out.

4. The defendant filed a notice of intention to appeal on 14 March 2012. He did not give instructions to appeal against the decision until 9 May 2012. The summons seeking leave to appeal was filed on 15 May 2012. In the meantime some directions had been given by Pembroke J for the ongoing conduct of the proceedings, not all of which were complied with.

5. On 13 June 2012 Ward J set a timetable for the ongoing progress of the matter. In broad terms, it required both parties to provide discovery and give inspection by 3 July 2012, and required the defendant to serve the affidavits on which he proposes to rely by 9 July 2012.

6. On 14 June 2012 the defendant filed a notice of motion in the Court of Appeal seeking a stay pending the determination of appeal proceedings. Promptly thereafter, on 20 June 2012, the President directed that the application for leave to appeal proceed with expedition and concurrency, and with a half day estimate for the hearing. The Court has some July hearing dates available. The plaintiffs in the court below can meet a July hearing date, though it is not their preferred course, as counsel who has been in the matter since the outset would not be available at that time. The defendant in the court below is able to meet an expedited hearing date.

7. The basis upon which an application for stay is made is that preparation of evidence statements would be expensive. There is an affidavit from the solicitor for the defendant who estimates that some $149,400 would be spent in preparing the case, as it would be necessary to take evidence in Romania. He estimates that some twenty days of solicitor's costs and fifteen days of counsel's fees would be involved. He estimates that it would be necessary for the solicitor and counsel to travel to Romania for ten days for the purpose of investigating and interviewing some witnesses and preparing affidavit evidence based on those interviews. He estimates that approximately $79,800 of the costs would not be necessary to incur if the proceedings were conducted in Romania. There is evidence from the solicitor that says,

   "I am informed by the defendant and verily believe that the defendant cannot afford to provide me with the $149,400 necessary to properly prepare the affidavit evidence, together with the remaining funds I have asked for to prosecute the appeal."

8. There is, apparently, a freezing order in place in relation to assets of the defendant. I have not been provided with the text of that order. It appears that amongst the assets that are affected by it are the defendant's interest in a former matrimonial home, and an interest that he has in a superannuation fund. There are proceedings on foot in the Federal Magistrates Court at Wollongong between the defendant and his ex-wife, relating to property settlement. There is a possibility that the defendant might settle the proceedings with his ex-wife, in a fashion that would result in his ex-wife receiving a whole interest in the matrimonial home and fifteen per cent of his interest in the superannuation fund. Orders have not been made, and clearly there will need to be an argument at some stage about whether and if so to what extent the defendant would be inhibited in consenting to any orders in those proceedings by the terms of the freezing order.

9. I am not persuaded that the overall balance of justice requires that there be a stay in the present proceedings. The stay is based upon the possibility of expenditure being wasted if the appeal were to succeed, and the defendant claiming to be unable to fund the preparation for trial. The evidence of the defendant being inhibited in providing the funds necessary to prepare the affidavit evidence is weak in the extreme. It is both hearsay evidence, and cast in terms of what he "cannot afford to" do. There is no attempt by him to explain what his assets and liabilities are, whether he is unable in practical terms to obtain funds from a course other than his own assets, or the reason why he "cannot afford to" make the payment.

10. In all these circumstances, I am not persuaded that a stay should be granted. The notice of motion is dismissed with costs. I direct the parties to approach the Registrar promptly to obtain a hearing date for the appeal.

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