Svagelj Nominees Pty Ltd v Ivans Mechanical Repairs Pty Ltd

[1990] FCA 24

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT	)
OF AUSTRALIA	I
WESTERN AUSTRALIA	)
DISTRICT REGISTRY	)
GENERAL DIVISION	) No. WAG 84 of 1985
B E T W E E N :	SVAGELJ NOMINEES PTY LTD

Applicant

and

IVAN'S MECHANICAL REPAIRS PTY LTD

First Respondent

IVAN KLEM SPANJICH

Second Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER:	FRENCH J.
DATE OF ORDER:	31 JANUARY 1990
WHERE IIIADE:	PERTH
THE COURT ORDERS THAT:

1.         The applicant's motion flled the 18 January 1990 be adjourned until 10.15 am on 28 February 1990.

2.         The applicant pay the respondentsr costs of the motlon today.

Order 36 of the Federal Court Rules.

Note: Settlement and entry of orders is dealt with in

NOT FOR DISTRIBUTION

. .

IN THE FEDERAL COURT	)
OF AUSTRALIA	)
WESTERN AUSTRALIA	)
DISTRICT REGISTRY	1
GENERAL DIVISION	) NO. WAG 84 of 1985
B E T W E E N :	SVAGELJ NOMINEES PTY LTD
and IVAN'S MECHANICAL REPAIRS PTY LTD

First Respondent

IVAN KLEM SPANJICH

Second Respondent

CORAM:  FRENCH J.
31 JANUARY 1990

EX TEMPORE REASONS FOR JUDGMENT
ON MOTION FOR INTERIM STAY OF EXECUTION

By this motlon, originally returnable on 28 February 1990, the applicant seeks a stay of execution of ludgment under 0.36 r.lO. The motion has been brought on today for the purpose of an interim stay order pending substantive argument on 28 February. The ludgment in question was given on the respondent's cross-claim. It is in two parts, the first glven on 26 January

1989 was for $36,098.90. Subsequently an award of interest in the	sum of $26,417 was made in favour of the first respondent and
orders made that the applicant pay the costs of both respondents on the application and the cross-clalm. At this stage, only the first ludgment has been extracted. I was Informed from the bar table that there has been an hiatus in the affairs of the second respondent who was only recently released after serving a term of imprisonment arising out of testimony given in proceedings in the Family Court between himself and his wife. The only ludgment therefore for which the interim order is sought is the first, in the amount of $36,098 .98 . The need for interim relief is said to arise because the Sheriff is now possessed of a writ of fi fa and the process of execution is under way. There has not been full argument on the motion today and I am asked to make the interim order to preserve the status quo until 28 February. In the meantime, certain undertakings are offered by the applicant and its directors not to dispose of any of the applicant's assets pending the hearing.
The motion is supported by an affidavit sworn by the applicant's solicitor alleging that a bulldozer, the property of the applicant and held in the reasons for judgment published on 26 January to be the subject of a lien in favour of the first respondent, is in a condition of such disrepair as to reflect a breach by the first respondent of its duty as lien holder and to give rise to an independent cause of action. The applicant has said that although its expert evidence is not yet before the Court, it proposes to adduce such evldence in support of the motion and has tentatively quantified its losses in respect of
what it calls the destruction of the bulldozer, at a sum considerably in excess of $40,000 . In essence the applicant
contends that it should be able to set off against the judgment sum damages to whlch it claims to be entitled arising out of the first respondent's breach of duty as lien holder.
The discretion conferred on the Court under 0.37 r.10 is a wide one, but generally speaking is exercised according to the principle that prima facie the successful party has the right to the frults of judgment and that special circumstances must be shown to justify a stay of execution. The circumstances of this case may be analogous in some respects to those in Hill v Ziymack (1908) 7 CLR 352, in which it was held that where a plaintiff has recovered damages in an action for conversion, equity will not on the ground of equitable set-off restrain the plaintiff from issulng execution to recover the amount of the verdict merely because there are unsettled accounts pending between the parties although the subject matter of the accounts consists of dealings and transactions affecting the property in respect of which the action was brought.
Apart from that proposition, the present position is that the total liability of the applicant to the first respondent on the judgment sum and Interest exceeds $62,000. In addltion to that there are the costs which have yet to be taxed. If the costs are taxed at anythlng in excess of $14,000, a not unllkely prospect, the total liability of the applicant to the first respondent would exceed $76,000, some $40,000 in excess of the substantive judgment sum of $36,098.98. The application for the interim stay is only in relation to that first and substantive
judgment. That in itself is sufficient to refuse the interim
order, the outstanding llabilitles under the unextracted judgment and costs being likely, even on the applicant's estimate, to be of approximately the same magnitude as its losses. That observation does not involve any pre-judgment as to whether, on the substantive hearing I would in any event make an order for a stay of execution in respect of all or any part of the combined judgment interest and costs. At this polnt I am not satisfied that adequate reasons have been shown to justlfy the order sought and I decline to make it. The appropriate form of order is simply that the motion be adjourned over until 10.15 am on 28 February 1990. The applicant should pay the respondents' costs of the motion today.

I certify that this and the preceding
three (3) pages are a true
copy of the Ex Tempore Reasons

for Judgment of hls Honour Justice French.

Assoclate: C

Date:

Counsel for the Applicant: Mr R. Bower

Sollcltors for the Applicant: Corser and Corser

Counsel for the Respondents: Mr C. Clark

Sollcltors for the Respondents: Clark & CO
Date of Hearlng:	31 January 1990
Date of Judgment:	31 January 1990