Slaveska v Elenchevski

[2010] VCC 1432

IN THE COUNTY COURT OF VICTORIA Revised

(Not) Restricted

AT MELBOURNE
COMMERCIAL LIST

GENERAL DIVISION

Case No. CI-08-04828

STOJANKA SLAVESKA	Plaintiff
v.
DRAGAN ELENCHEVSKI	Defendant

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	21 October 2010
DATE OF JUDGMENT:	21 October 2010 (revised 25 October 2010)
CASE MAY BE CITED AS:	Slaveska v. Elenchevski
MEDIUM NEUTRAL CITATION:	[2010] VCC 1432

REASONS FOR JUDGMENT

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Catchwords:  Practice and Procedure – Stay of execution – Application for an extension of time to bring application for leave to appeal against interlocutory costs order pending in the Court of Appeal – No basis shown for staying execution – Order 66.16 County Court Civil Procedure Rules 2008

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms Snezana Slaveska (the plaintiff’s daughter-in-law, by leave)
For the Defendant	Mr A. Sandbach	Novatsis & Alexander
HIS HONOUR:

1           The plaintiff has made an application by summons, filed 19 October 2010, seeking the following orders:

“1.	The costs order made on 18 February 2010 by His Honour Judge Shelton be set aside or dismissed;
2.	Set aside the warrant for sale and seizure and the costs order, pending the outcome of the Supreme Court Court of Appeal, Appeal number 2010/0133”.

2           I last dealt with this matter on 8 October 2010. I refused an application by the plaintiff that she be represented at trial by her daughter-in-law, Snezana Slaveska. During the course of that application, I considered an oral application for a stay of the costs order of Judge Shelton. There was no material filed in relation to that application. A

summons had, however, been filed the previous day, 7 October 2010, in the Court of
Appeal seeking “leave to extend the time to apply for leave to appeal from the cost
order of Judge Shelton, dated 18 February 2010, County Court Proceeding No.
CI-08-04828”. That summons was returnable on 12 November 2010.

3           I refused the application for a stay of execution on the costs order, but reserved liberty to the plaintiff to make a further application to me, supported by proper material. I did this in large part because I considered it more appropriate that the parties return before me, rather than seeking to have the Court of Appeal sit earlier than the return date of the summons on 12 November. It was also anticipated that, in the meantime, there may be some discussion between the parties about the issue of execution and that the plaintiff may pursue an application for payment of the order by instalments through the County Court Registry.

4           The plaintiff issued the further summons on 19 October 2010. It is supported by an affidavit of Snezana Slaveska, sworn today, and served for the first time upon the defendant in Court at the commencement of the application. Despite opposition from the defendant, I have permitted Mrs Snezana Slaveska to address me on behalf of her mother-in-law in support of the application for a stay.

5           The basis for the application appears to be:

a.	the assertion that Judge Shelton should not have made the order he did, but should have accepted the submission made on behalf of the plaintiff by her son, Mr Slaveski, that no order for costs be made, or alternatively, that the costs be paid by the firm of solicitors, Fernandez & Johnson, or that costs be in the cause;
b.	that in a subsequent conversation between Mr Slaveski and the defendant’s solicitor, Mr Novatsis, Mr Novatsis stated that he would not enforce the costs order against the plaintiff. Apparently later, Mr Novatsis has made statements to the contrary, threatening that the sheriff would be asked to enforce the

costs order against the plaintiff;

c. that attempts by the plaintiff and members of her family to contact the defendant’s solicitors or counsel in recent days to negotiate the issue of costs have been unsuccessful because, it is alleged, telephone messages have not been returned.

6           The factual allegations made on the plaintiff’s behalf are denied by the defendant’s solicitors and because of the late service of the plaintiff’s affidavit material, no opportunity was available to them to file answering material. Defendant’s counsel, Mr Sandbach has referred to the fact that the plaintiff’s affidavit material provides no explanation as to why an appeal was not initiated at an earlier time, following Judge Shelton’s order in February 2010, or details of other factual matters relevant to the application, for example, the basis upon which Judge Shelton made a further order in relation to the issue of whether Fernandez & Johnson should be liable for the costs order made on 18 February 2010 and the later consent of the plaintiff not to pursue that matter.

7 The Court has general power, pursuant to Order 66.16 of the Rules of Court to “stay execution of a judgment”. In the Supreme Court Rules, there is also power given to the Court of Appeal or a Judge or Associate Judge of that Court to “stay execution “of proceedings under the decision appealed from”. There is no similar provision in the County Court Rules. Although the power given by Order 66.16 is a wide discretion, the authorities make it clear that “the circumstances that will justify a stay are circumstances which go to the enforcement of the judgment and not those which go to its validity or correctness”: Williams Civil Procedure Victoria, paragraph I, 66.16.15.

8 The notes in paragraph I, 66.16.5 of Williams referring to the separate rule in the Supreme Court (Order 64.25) suggest that in the circumstances of the present case, the operation of Order 66.16 would be limited. In my view, the only proper basis put forward by the plaintiff for a stay of execution was that she intended to make application to pay the costs order by instalments. This is a matter that goes to the enforcement of the judgment and not to matters which it is inappropriate for me to enter into. No such application has been made at the present time. It is an application which can be made in the County Court Registry. As to whether it is appropriate in the present case, I am unable to say because there is no material before me about the plaintiff’s financial circumstances. The onus is upon an applicant for a stay of execution to justify such an order. No matters have been put before me which would provide a proper basis for me to stay execution of the costs judgment.

9           The application for an extension of time to seek special leave to appeal from the order of Judge Shelton has now been given a new return date of 13 December 2010. Whilst in certain circumstances, I may have been prepared to consider a bridging order to

avoid the steps necessary for the plaintiff to pursue a stay application before the Court of Appeal, in light of the extension of the time and the setting of a new return date, I do not consider that such a course can be justified. In these circumstances, the plaintiff’s

application will be refused.

10         I consider that because the matter will shortly be before the Court of Appeal that it is appropriate for the defendant’s costs of this application to be costs in that appeal. It was necessary for the parties, although not defendant’s counsel, to appear before me

today in order for the defendant to inspect the original of a critical document in the
dispute to determine whether to make an admission as to whether the document was
personally signed by him.

11         The defendant’s costs of the application today, and of the application determined by me on 8 October 2010, will be costs in the appeal. I certify counsel’s brief fee on each occasion at $1,650.

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Certificate

I certify that these 3 pages are a true copy of the reasons for decision of His Honour Judge

Anderson delivered on 21 October 2010 and revised on 25 October 2010.

Dated: 25 October 2010

Caroline Dawes

Associate to His Honour Judge Anderson