Tibbles v Ulladulla Creative images Pty Ltd (No 2)

[2021] NSWDC 405

District Court

New South Wales

Medium Neutral Citation:

Tibbles v Ulladulla Creative images Pty Ltd (No 2) [2021] NSWDC 405

Hearing dates:

16 July 2021

Date of orders:

16 July 2021

Decision date:

16 July 2021

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

Application for stay of proceedings dismissed.

Catchwords:

Practice and Procedure – Stay of proceedings – Only ground alleged was impecuinly of unsuccessful defendant to pay judgment debt.

Legislation Cited:

Uniform Civil Procedure Rules 2005

Cases Cited:

Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685

McLean Tecnic v Digi-Tech; Kalifair v Digi-Tech [2002] NSWCA 383; (2002) 55 NSWLR 737

Penrith Whitewater Stadium Ltd & Anor v Lesvos Pty Ltd & Anor [2007] NSWCA 103

Category:

Consequential orders

Parties:

1st Applicant – Ulladulla Creative Images Pty Ltd
2nd Applicant – John Corrin
1st Respondent – Ian Tibbles
2nd Respondent – Debbie Tibbles

Representation:

Counsel:
Applicants – M. Maconachie
Respondents – M. Kalyk
Solicitors:
Applicants – R. Ferguson (McNamara & Associates)
Respondents – M. Davidson (Paladin Law)

File Number(s):

2019/00387037

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: This is an application for a stay of proceedings. The second prayer in the notice of motion is this:

"A stay of the judgment entered by this Court on 3 June 2021 pursuant to UCPR 51.44 and ss 128 and 156 of the District Court Act 1973 pending appeal to the Supreme Court of New South Wales Court of Appeal."

The judgment which I entered in these proceedings was in fact pronounced and directed to be entered on 2 June 2021 and in the normal course, it was entered into JusticeLink on that day.

2. On 29 June 2021 at 5.30pm, the applicant/judgment debtor filed a notice of intention to appeal in the Supreme Court. That gives the wrong material date, 3 June 2021, when in fact the judgment was given on 2 June 2021. It misspells both my Christian name and my surname which would appear to be a common practice for the appellant's solicitor. The applicant had 28 days from the entry of judgment to file the notice of intention to appeal and to serve it. Under UCPR 1.11(2), "If a time of one day or longer is to be reckoned by reference to a given day or event, the given day or the day of the given event is not to be counted" in reckoning that period of time. Hence, time started running on 3 June 2021 and expired on 1 July 2021. The respondents’ solicitor believed that the notice of intention to appeal had been served out of time but that belief is incorrect.

3. I must add, however, that the applicant's solicitor failed to comply with UCPR 51.42 which required her to file the Notice of Intention to Appeal in the registry of this Court. The proceedings in question were filed in Nowra, heard by me in Nowra and judgment was pronounced in Nowra. It was therefore a requirement of UCPR 51.42 that the applicant's solicitor serve a copy of the Notice of Intention to Appeal upon the Registrar at Nowra on or before 1 July 2021 but that has never been attended to.

4. The application before me is a curious one. I use that adjective advisedly. I directed the entry of judgment for the first plaintiff against the first defendant Ulladulla Creative Images Pty Ltd for $120,124.06. I also directed the entry of judgment in favour of the second plaintiff against the same company for $120,124.06. Accordingly, the total judgment debt is $240,248.12. No part of the judgment debt has been paid. Accordingly, interest is now running on the judgment debt and has been since it was entered. I also ordered the first defendant, the company, to pay the costs of each of the plaintiffs but those costs have not yet been agreed or assessed. They remain unpaid.

5. The only ground given in the affidavit of Ms Ferguson, the applicant's solicitor which would warrant a stay of proceedings is [6]. It is this:

"I have been instructed by [the judgment debtor] that it is unable to provide security for the judgment during the appeal and would be forced into administration or receivership if such security were required."

I admitted that not as evidence of the truth of the fact deposed to but merely as evidence of what the solicitor's instructions were. A substantive affidavit should have been provided on behalf of the company outlining its financial circumstances. However, that was not attended to.

6. The principles for granting a stay of proceedings are well known. They are summarised by McColl JA in Penrith Whitewater Stadium Ltd & Anor v Lesvos Pty Ltd & Anor [2007] NSWCA 103 at [19]. Her Honour was relying on what was said in Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685 at 691. The onus is upon the applicant to demonstrate a proper basis for a stay. Where there is a risk that an appeal will prove abortive if the appellant succeeds and a stay is not granted, the Court will normally exercise its discretion in favour of granting a stay. A successful but abortive appeal occurs when the successful appellant has the judgment below set aside but cannot recoup the monies paid to the unsuccessful party pursuant to the orders made by the Court below. As her Honour points out in [20]:

"Since a stay will prevent the judgments being enforced while the appeal is pending, the Court should endeavour to preserve the status quo by protecting the judgment creditor from the risk of loss"

In making that pronouncement, her Honour was relying upon McLean Tecnic v Digi-Tech; Kalifair v Digi-Tech [2002] NSWCA 383; (2002) 55 NSWLR 737 at [28].

7. If the applicant's solicitor's instructions be correct, then if a stay be granted and security of costs not be ordered, then whatever assets the applicant has may be expended upon its solicitor and counsel in prosecuting an unsuccessful appeal, leaving the current judgment debtors completely out of pocket even though they had success in defending the appeal. One of the principles stated by McColl JA in [19] of her judgment which I have cited is that "what is important in considering whether or not a stay ought be granted is the balance of convenience and the competing rights of the parties before it". Here, what is postulated is that there should be no payment to the judgment creditors, that there be no giving of security of costs, that the assets of the applicant will be used up by its counsel and solicitor, leading to the prospect that, if the appeal be unsuccessful, then it would be unlikely, if Ms Ferguson's instructions be correct, that the judgment debtors will be paid the judgment debts, their costs of the proceedings in this Court or their costs of the proceedings in the Court of Appeal.

8. The Court must proceed on the basis that the judgment entered by it is correct. Mr Maconachie, who appears today for the applicant, submits that there is an arguable case for the appellant to place before the Court of Appeal. The only thing which might be seen to be grounds of appeal are seven paragraphs set out in [5] of Ms Ferguson's affidavit of 1 July 2021. In essence, the first six propositions offered as grounds of appeal are merely a regurgitation of the unsuccessful arguments made before me in Nowra. The final ground is a ground that was not even pleaded, raised or argued before me in Nowra at all.

9. The argument placed before me in Nowra I sought to deal with in my ex tempore judgment and what I said then has been supported by what has been submitted on behalf of the respondents to this application. It is also supported in brief form by the letter of the respondent's solicitor, Mr Davidson, of 2 July 2021 which he sent to Ms Ferguson but to which she has not even had the courtesy of replying.

10. Mr Davidson also makes the point that the notice of motion currently before me and the affidavit supporting it which is currently before me were not served on him. He only learnt about the listing today when he received a notice of it from the Registrar yesterday and by going to the online Court was able to obtain he relevant documentation, another instance of an inadequate dealing with this matter by the applicant's solicitor.

11. There is no evidence whatever that if the judgment debt is paid to the judgment creditors, they will not be able to repay it to the applicant if the proposed appeal be successful. For all I know, they might be millionaires, they might be the owners of substantive realty in coastal New South Wales and coastal realty in New South Wales has in the last few years skyrocketed in value.

12. There is no merit in this curious application. The application for the stay of proceedings is dismissed. I order the applicant to pay the respondent's costs for the notice of motion. Any other orders sought?

[Further submissions]

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Decision last updated: 17 August 2021