Slaveska v Elencevski
[2016] VSC 127
•6 APRIL 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COSTS COURT
S CI 2015 0911
| STOJANKA SLAVESKA | Appellant |
| v | |
| DRAGAN ELENCEVSKI | Respondent |
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JUDGE: | RIORDAN J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 31 MARCH 2016 |
DATE OF JUDGMENT: | 6 APRIL 2016 |
CASE MAY BE CITED AS: | SLAVESKA v ELENCEVSKI |
MEDIUM NEUTRAL CITATION: | [2016] VSC 127 |
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PRACTICE AND PROCEDURE – Relevant considerations on an application for a stay of execution of a warrant.
APPEAL – Nature of appeal from Associate Justice – Whether Associate Justice failed to take into account relevant consideration in refusing an application for a stay of execution of a warrant – Appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | In person | |
| For the Respondent | Mr A Sandbach | Filtner & Company Solicitors |
HIS HONOUR:
By notice of appeal dated 3 March 2016, the appellant appeals pursuant to s 17(3) of the Supreme Court Act 1986 against a determination of Associate Justice Lansdowne made on 19 February 2016.
On that date, Associate Justice Lansdowne heard an application by the appellant made by summons dated 18 January 2016 in which the following orders were sought:
(a)An interim order that warrant No. SW150051277 (‘the Warrant’) be stayed pending the outcome of the application;
(b)An order that the Warrant be stayed pending completion of the proceedings in Macedonia which relate to the original proceedings in Australia; or
(c)An order that the Warrant be stayed/set aside pending the sale of the property namely 382 Station Street, Lalor (‘the Property’) by the appellant, and the Sheriffs have no right to sell the Property.
On 19 February 2016, Associate Justice Lansdowne handed down reasons (‘Reasons’) and ordered as follows:
1.The judgment debtor's application for stay of execution of the warrant of seizure and sale issued 4 November 2015 ('the Warrant') is refused.
2. The judgment debtor's summons filed 18 January 2016 is dismissed.
3.The judgment debtor pay the judgment creditor's costs of the summons on an indemnity basis and those costs be recoverable, if fixed pursuant to order 4 or otherwise taxed or agreed, under the Warrant.
4.The judgment creditor has liberty to apply on notice to the judgment debtor for his costs of the summons to be fixed.
The grounds of appeal are identified in the notice as ‘Natural Justice, Bias, Failing to take into consideration the relevant law and evidence, denial of human rights and living circumstances, failure to take into account mental health’.
Background
The background to this appeal extends back to 1986 and is set out in some detail in the decision of the Court of Appeal in Slaveska v Elenchevski[1] and the County Court proceeding which was the subject of appeal.[2] A brief summary of the background is as follows:
[1][2013] VSCA 283 (Warren CJ, Neave and Priest JJA) (‘Court of Appeal Reasons’) (I note in that proceeding Elencevski was spelt ‘Elenchevski’).
[2]Slaveska v Elenchevski [2012] VCC 311 (Judge Anderson).
(a)In 1986, the appellant alleges that she, through her son as agent, purchased a house and land of 485 square metres in Ohrid, Macedonia for the sum $56,000.
(b)In 2003, the appellant was involved in court proceedings in Macedonia in which the respondent’s brother, Mr Ljubin Elencevski, sought to establish ownership in respect of 149 metres of the 485 metres of land on the basis that the respondent had subdivided the land and gifted part of it to him / entered into an arrangement with him in respect of part of the land prior to the sale to the appellant. She initially succeeded before the Municipal Court at Ohrid on the basis that she had purchased and continually occupied the property. However, the Court of Appeal in Bitola set aside the judgment on the basis that any contract of sale relating to the 149 square metres was unenforceable because it was public property. The matter was remitted for a further hearing to the Municipal Court.
(c)On 17 October 2006, the Municipal Court held that Mrs Slaveska was entitled to the house and land totalling 336 square metres but not to the 149 square metres.
(d)On 13 November 2008, the appellant filed a writ in the County Court of Victoria seeking damages in the sum of $17,204.12 being the difference between the value of the land transferred to her and the land to which she was entitled under the contract. In the alternative, she claimed damages for misrepresentation as to the respondent’s title to the 485 square metres. Between 2008 and 2012, there were numerous procedural hearings and six trial dates were vacated. The appellant’s conduct contributed to five of them.[3]
[3]Court of Appeal Reasons [37].
(e) On 28 March 2012, Judge Anderson dismissed the County Court proceeding for want of prosecution.[4] Relevantly Judge Anderson, in his reasons, noted that there had been a number of court appearances for which the respondent had not been reimbursed.[5]
[4]Slaveska v Elenchevski [2012] VCC 311.
[5]The respondent has still not been reimbursed.
a.17 July 2009: Any costs thrown away as a result of the vacation of the trial date and the costs of the hearing today are reserved.
b.18 February 2010: The plaintiff pay the defendant’s costs thrown away by reason of this adjournment to be taxed on Scale Defendant in default of agreement. Certify for counsel in the sum of $3,500. [‘the Judge Shelton Order’]
c23 June 2010: The defendant’s costs of the hearing today and the question of whether any costs were thrown away as a result of a judge not being available to commence the case today are reserved.
d.8 October 2010: The defendant’s costs are reserved. It is noted that defendant’s counsel seeks a brief fee of $1,650 and $1,000 for the attendance of his solicitor and $500 for the preparation of an affidavit. These costs, including whether they should be paid by the plaintiff and the quantum of the costs will be considered by the Court on the next occasion the matter returns to Court.
e.21 October 2010: The defendant’s costs of the application and of the application determined by Judge Anderson on 8 October 2010 will be costs in the appeal from the orders of Judge Shelton made on 18 February 2010. Certify counsel’s brief fee on each occasion at $1,650.
f.21 February 2011: The defendant’s costs are reserved. It is noted that defendant’s counsel seeks a brief fee of $1,650 and $1,000 for the attendance of his solicitor. These costs, including whether they should be paid by the plaintiff and the quantum of the costs will be considered by the Court on the next occasion the matter returns to court.
g. 3 February 2012: Reserve costs.
(f)On 9 October 2013, the Court of Appeal dismissed the appellant’s appeal against the decision of Judge Anderson.
(g)On 12 March 2014, the High Court[6] dismissed the appellant’s application for special leave to appeal against the decision of the Court of Appeal.
[6]Bell and Gageler JJ.
The Judge Shelton order was taxed on 10 September 2010 at $7,031.30. On 7 October 2010, the appellant filed a summons seeking extension of time to apply for leave to appeal from the Judge Shelton order. On 13 December 2010, Mandie JA and Vickery AJA ordered that the application be adjourned until after the trial and determination of the County Court proceedings. On 5 December 2014, the matter came on before the Court of Appeal,[7] at the request of the appellant, and the Court granted the appellant’s application for an adjournment and ordered that she pay the respondent’s costs thrown away. On 19 December 2014, the Court of Appeal[8] dismissed the appellant’s application for an extension of time to appeal against the Judge Shelton order and ordered the appellant to pay the respondent’s costs, including the costs of the hearing before the Court of Appeal on 13 December 2010 on an indemnity basis.
[7]Nettle JA and Sloss AJA.
[8]Neave J and Sloss AJA.
In mid December 2015, the Sherriff attended at the appellant’s house pursuant to the Warrant and demanded approximately $124,000.
By an exclusive sale authority dated 4 January 2016, the appellant authorised Harcourts Epping real estate agency to sell the Property. The agent’s estimate of selling price, provided pursuant to s 47A of the Estate Agents Act 1980, was between $600,000 and $660,000.
On or about Monday 11 January 2016, the appellant received a letter from the Sheriff’s Office advising that if she did not pay the sum of $126,760.89 due under the Warrant by 18 January 2016, it would sell the Property at a public auction.
By email dated 13 January 2016 to the solicitors for the respondent, the appellant (by her daughter-in-law Ms Snezana Angeleska Slaveska) advised that the appellant had put the Property on the market and requested that the Warrant be put on hold pending the sale of the Property.
By email dated 14 January 2016, the respondent’s solicitors replied stating they required documentary evidence before consideration could be given to the request. By return email on the same day to the respondent’s solicitors, the appellant’s daughter-in-law attached the agent’s authority.
By email dated 15 January 2016 to the appellant’s daughter-in-law, the respondent’s solicitors advised that it would not agree to put the Warrant on hold.
On 18 January 2016, the appellant filed the summons in this proceeding seeking a stay of execution of the Warrant.
By email dated 12 February 2016 to the respondent’s solicitors, the appellant’s daughter in law, on behalf of the appellant, stated:
As you are aware the application of Mrs Slaveska is listed on 19 February 2016 in the Supreme Court.
Mrs Slaveska has inquired with some Financial Institutions to borrow some funds to settle with you.
Would you accept $100,000 in full and final payment to settle the debt/warrant and to withdraw the caveat from her property.
Note that: She’s still selling the property with Harcourts but it could take longer.
Please let me know by close of business on Tuesday 16 February whether this is acceptable or not.
By letter dated 3 March 2016 to the appellant, the respondent’s solicitors personally served on the appellant a copy of a letter from the Sheriff’s Office dated 3 March 2016 and the Notice of Intended Sale and advised that the Property ‘has been placed for Sale by Auction’ on 7 April 2016.
Nature of the appeal
Appeals to the Trial Division from an Associate Justice are no longer by way of a hearing de novo.[9] The appeal is an appeal by way of rehearing which is similar to an appeal to the Court of Appeal under s 17(2) of the Supreme Court Act 1986. Such an appeal requires the appellant to demonstrate error by the Associate Justice.[10] The present appeal is against the refusal of a stay of execution, which is a matter of practice and procedure. Such an appeal requires the Court to exercise particular caution in reviewing the decision.[11] On such an appeal, the Court will not reverse a decision merely because it would have decided the matter differently.[12] It will ordinarily be necessary for the appellant to establish strong reasons such as an error of principle, the consideration of irrelevant matters, a failure to consider relevant matters or some other manifest mistake in order to take it out of the situation where the exercise of the discretion was simply a matter about which minds may differ.[13]
[9]The rules in relation to such appeals were changed with effect from 1 January 2013.
[10]Oswal v Carson [2013] VSC 355 [11] (Ferguson J) citing Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 203-4 [14] (Gleeson CJ, Gaudron and Hayne JJ).
[11]Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 177 (Gibbs CJ, Aickin, Wilson, Brennan JJ).
[12]Lovell v Lovell (1950) 81 CLR 513, 532 (Kitto J).
[13]Wentworth v Rogers (No 3) (1986) 6 NSWLR 642, 644 (Kirby P), 651 (Priestly JA with whom Glass JA agreed) approved by Etna v Arif [1999] 2 VR 353, 378 [67] (Batt JA with whom Charles and Callaway JJA agreed).
Grounds of Appeal
The appellant submits that the Associate Judge had erred in failing to take into account the following considerations:
First, it was alleged that the Associate Judge failed to take into account the fact that the appellant had made a genuine offer of $100,000 by the email of 12 February 2016 referred to above. As noted above, the offer was expressed to being with respect to all outstanding costs orders.
The appellant deposes that the Sherriff has informed her that the amount due under the Warrant is $129,647.98. The respondent contends that there are additional taxed and fixed costs of $20,930.52 and there are further amounts due under various costs orders which have not been taxed.
I reject the appellant’s contention that the Associate Judge failed to take into account this matter as a relevant consideration for the following reasons:
(a)In paragraph 16 of her Honour’s reasons, there is specific reference to the letter of 12 February 2016. However, her Honour notes that there is no evidence to support the proposition that the sum of $100,000 will actually be available as a result of the inquiries with financial institutions.
(b)In my opinion, the fact that the appellant has made an offer to satisfy all outstanding costs orders due by her, at a sum substantially less than the amounts due under such orders, does not constitute a relevant consideration that the Associate Judge was required to take into account on this application.
Secondly, the appellant submitted that the Associate Judge had failed to take into account the fact that she had a valid entitlement under a contract to the land in Macedonia; and that she had filed fresh proceedings in Macedonia.
I reject the contention that the Associate Judge failed to take these matters into account and that her Honour was required to take such matters into account for the following reasons:
(a)The validity of the appellant’s claim has not been established and the Court of Appeal considered that ‘In the absence of particulars of the fraud claim and any reply to the defence it is impossible to assess whether the appellant’s claim has any merit at all’ and that ‘the judge could have summarily dismissed the proceeding or struck out the appellant’s pleading … on the basis that the claim had no real prospect of success’.[14]
(b)The Associate Judge referred to the appellant’s ‘strong conviction that she is in the right’ and that ‘new proceedings have been commenced in Macedonia’.[15] However, her Honour, in my opinion correctly, considered that the proceedings were not relevant to the current stay application because the respondent was not a party to those proceedings.
(c)Further, nothing that occurred in the fresh proceedings in Macedonia could disentitle the respondent to the benefit of the orders for costs in his favour. In my opinion, at best, the speculative prospect that the appellant could one day obtain an order in Macedonia and apply for a set off against the costs orders in this jurisdiction is not a consideration that the Associate Judge was required to take into account.
[14]Court of Appeal reasons [33]-[34].
[15]Reasons [14].
Thirdly, the appellant submitted that the Associate Judge had failed to take into account the fact that the plaintiff proposed to arrange the sale of the Property and had signed an agency authority for that purpose.
I reject the appellant’s submission that the Associate Judge failed to take into account these matters and that her Honour was required to do so for the following reasons:
(a)In paragraph 15 of the Reasons, her Honour noted the fact that the appellant would prefer to sell her home herself but considered that there was ‘insufficient evidence to show that she is prosecuting that sale with sufficient zeal, that is, enthusiasm, to allow Mr Elencevski to be paid out in any timely way, or at all’. Further, by the time of the hearing before me, although the appellant had filed a further affidavit, there was no evidence of any developments or efforts to sell the Property.
(b)I do not consider that the fact that a debtor instructs an agent to sell a property, after the Sherriff has commenced arrangements to effect a sale pursuant to a warrant, is a matter which the Court is required to take into consideration on an application for a stay.
Fourthly, the appellant submitted that the Associate Judge failed to take into consideration the evidence with respect to her health and, in particular, her blood pressure, eyesight problems and asthma.
I reject the appellant’s submission that the Associate Judge failed to take these matters into consideration and that her Honour was required to do so for the following reason:
(a) In paragraph 17 of the Reasons, her Honour accepts that the appellant is in a ‘poor state of health generally’. Further, she states that ‘There is also no medical evidence to show a medical reason why Mrs Slaveska need remain in the home and, again, even if shown, that would ordinarily be for a short term stay only’.
(b) In my opinion, her Honour specifically identified the state of the appellant’s health and correctly stated that such medical condition would not be the basis for a long term stay of execution of the costs orders.
Fifthly, the appellant submitted that the Associate Judge had failed to take into consideration the fact that the appellant had lived in the house on the Property for about 20 years and it contains modifications such as steel bars in the toilet and bathroom to accommodate her age and poor health.
I reject the contention that the Associate Judge failed to take these matters into consideration or that her Honour was required to do so for the following reasons:
(a)In paragraph 17 of the Reasons, her Honour states ‘I accept what Mrs Slaveska says – that there are some modifications to the home by way of steel bars in the toilet and bathroom to accommodate her age and poor health – but I also accept the submission put for Mr Elencevski that it has not been shown that it is essential that Mrs Slaveska live in the Property as opposed to any other property, or that she has no alternative accommodation’.
(b)Similarly to the previous consideration, the Associate Judge stated that such considerations would, in the absence of the judgment debt being satisfied, only be relevant for the purpose of considering a short term stay.
(c)In my opinion, her Honour specifically considered the relevant modifications to the house and correctly stated that such a factor would not be the basis for a long term stay of execution of the costs orders.
Orders
For the reasons stated above, I do not consider that the appellant has demonstrated that the Associate Judge failed to take into account any relevant consideration or that she has otherwise made any error. Accordingly, I must dismiss the appeal. I will hear the parties on the question of costs.
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