PRACTICE AND PROCEDURE – application for stay of execution – whether exceptional or special circumstances – whether application for special leave to appeal would be rendered nugatory in absence of stay – application for freezing order – whether intent to dissipate or diminish assets made out.
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Appearances:
Counsel
Solicitors
For the Appellants
Mr C Young
Pilley McKellar Pty Ltd
For Euro Superannuation Pty Ltd, Sculpture Atelier Pty Ltd and Sabina Sopov
Mr C Young
Pilley McKellar Pty Ltd
For the Respondent
Mr J Digby QC with Mr M J Stirling
Deacons
MANDIE JA BEACH AJA:
By summons filed 4 August 2009, the appellants (Cole Sopov and Norma Walker and their development company Stacks Properties Pty Ltd) sought a stay of execution on a judgment of the Court of Appeal resulting from a decision handed down on 15 June 2009. In fact the formal judgment was made on 6 August 2009 when the Court ordered that the defendants (appellants) pay the plaintiff (respondent) the sum of $2,900,658.70 plus certain costs of a VCAT proceeding and the costs of the appeal. On the same day, the Court (constituted by the President) made a number of orders including an order that the summons be adjourned to a date to be fixed by the Registrar and that there be a stay on execution of the judgment entered that day in favour of the respondent against the appellants until further order.
By summons filed 14 July 2009, the respondent sought a freezing order pursuant to r37A of the Supreme Court (General Civil Procedure) Rules 2005 restraining the appellants and two other companies (Euro Superannuation Pty Ltd – ‘Euro’ – and Sculpture Atelier Pty Ltd – ‘Sculpture’) from removing, disposing of, dealing with or diminishing the value of any of their assets and a further freezing order restraining Sabrina (hereafter ‘Sabina’) Sopov from disposing of or alienating or transferring her shares or interests in Euro and/or Sculpture. The summons sought a further order that the appellants, Euro, Sculpture and Sabina Sopov file and serve an affidavit disclosing and fully particularising the nature, value and location of their assets and of any securities or encumbrances over them. The order made by the President on 6 August 2009 also adjourned that summons to a date to be fixed and until further order, except with the written consent of the respondent, restrained the appellants, Euro and Sculpture from dealing with their assets in various ways other than for the payment of ordinary living and legal expenses and a further order was made against Sabina Sopov in relation to her shares in Euro and Sculpture (also until further order).
Both of the above summonses now come before this Court.
The…
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.
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Details
AGLC
Sopov v Kane Constructions Pty Ltd [2009] VSCA 216
Case
[2009] VSCA 216
Decision Date
CaseChat Overview and Summary
In the case of Sopov v Kane Constructions Pty Ltd, the dispute revolved around an application for a stay of execution of a judgment and an application for a freezing order. The case was heard in the Federal Court of Australia. The plaintiff sought a stay of execution on the grounds that exceptional or special circumstances existed, and that the application for special leave to appeal would be rendered nugatory if the stay was not granted. The plaintiff also sought a freezing order, arguing that there was intent to dissipate or diminish assets.
The court was required to determine whether there were exceptional or special circumstances warranting a stay of execution and whether the application for special leave to appeal would be rendered nugatory without such a stay. Additionally, the court had to decide if there was sufficient evidence to support the granting of a freezing order based on an intent to dissipate or diminish assets.
The court found that the plaintiff had not established the existence of exceptional or special circumstances that would justify a stay of execution. Furthermore, the court concluded that the application for special leave to appeal would not be rendered nugatory if the stay was not granted. Regarding the freezing order, the court determined that there was sufficient evidence to indicate an intent to dissipate or diminish assets, and thus granted the freezing order. The court's decision was based on the balance of convenience, which favoured the preservation of the assets pending the outcome of the appeal.