Velissaris v Maryvell Investments Pty Ltd (In Liquidation) & Anor
[2007] HCATrans 544
•19 September 2007
[2007] HCATrans 544
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M103 of 2007
B e t w e e n -
CONSTANTINOS GEORGE VELISSARIS
Applicant
and
MARYVELL INVESTMENTS PTY LTD (IN LIQUIDATION)
First Respondent
LAURENCE ANDREW FITZGERALD (LIQUIDATOR OF MARYVELL INVESTMENTS PTY LTD) (IN LIQUIDATION)
Second Respondent
Application for stay
HAYNE J
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON WEDNESDAY, 19 SEPTEMBER 2007, AT 9.49 AM
Copyright in the High Court of Australia
MR C.G. VELISSARIS appeared in person.
MR S.P. GARDINER: May it please the Court, I appear on behalf of the respondent, your Honour. (instructed by Robert James)
HIS HONOUR: Mr Velissaris, you are making this application for a stay in one of the two applications for special leave you have filed in the Court, is that right?
MR VELISSARIS: I apply for a stay of both orders, your Honour, in case 4484 of 2006 and in case 5288 of 2007.
HIS HONOUR: The application is made in this Court in matter M103 and is made by your summons of 17 September. You rely on your affidavit of 17 September 2007, do you?
MR VELISSARIS: Yes, your Honour.
HIS HONOUR: Is there any objection to my reading that affidavit, Mr Gardiner?
MR GARDINER: No there is not, your Honour.
HIS HONOUR: There is an affidavit filed in answer, which is the affidavit of Laurence Andrew Fitzgerald sworn 18 September 2007. Have you seen that affidavit, Mr Velissaris?
MR VELISSARIS: Yes, your Honour. I have seen this affidavit given to me about half an hour ago.
HIS HONOUR: I understand that. Do you have any objection to my receiving it?
MR VELISSARIS: No, your Honour, but have been filed a bit late I believe definitely, because I file my documents to the other side 4.00 pm the 17th and last night they try to fax me something around 8.00, 8.30 pm and, as I told him from before, my fax machine does not receive more or less properly at all, and the point is I have been given this affidavit in the morning which is – I have not even had a chance to read it yet properly, but in any case, what I do not object if they want to file it well they can file it.
HIS HONOUR: Yes. What do you want to say in support of your application for a stay, Mr Velissaris?
MR VELISSARIS: Your Honour, if I may hand you over submissions and ‑ ‑ ‑
HIS HONOUR: Yes. Have you seen these, Mr Gardiner?
MR GARDINER: Yes, they were handed to me this morning, your Honour.
HIS HONOUR: Yes, thank you.
MR VELISSARIS: And the submissions we have filed with the Supreme Court and their submissions that they filed in the Supreme Court themselves and produced ‑ ‑ ‑
HIS HONOUR: Just a moment, Mr Velissaris. If you hand up your submissions and let me have a look at them.
MR VELISSARIS: Yes, here you are.
HIS HONOUR: Thank you. What you have handed me, Mr Velissaris, is, firstly, your written submissions to the High Court and then some outlines of argument that were filed in the Court of Appeal and in the Commercial and Equity Division of the Supreme Court before Justice Dodds‑Streeton, is that right?
MR VELISSARIS: Yes, your Honour.
HIS HONOUR: That is what you have given me.
MR VELISSARIS: And their application which was, I believe, filed in June.
HIS HONOUR: Yes. Well, let me have a look at the submissions that you have handed me in relation to this Court first.
MR VELISSARIS: Yes.
HIS HONOUR: If you would have a seat, Mr Velissaris. I have read what you have written here, Mr Velissaris. Is there anything further that you want to add to what is said in the written document?
MR VELISSARIS: What I want to add, your Honour, is this.
HIS HONOUR: You come to the microphone if you want to. Yes?
MR VELISSARIS: What I want to tell your Honour is this. I believe I have been very badly dealt with in this case from the start. My problem started when a truck, semitrailer, hit the front verandah of the trust property and caused very big damage. Was around 11.00, 11.30 at night, in the evening. The signs had been pulled down, there was big damage. Anyway, the point to cut the story short is, we engaged Tolhurst and Emmerson to sue the truck driver and the truck driver apologised 10 times over, it was not his fault. It was a simple complaint to litigate and get the damages from the truck driver’s insurance. I do not want to go too much to that.
The point is, I have discussed with Tolhurst, as I had been given the firm by the Law Institute, that they are good people, good solicitors to get the claim across fast because I could not operate the restaurant without the signage and the lights….. Tolhurst told me they would charge me a maximum.....to……this claim and it would be a simple procedure. I have been…..times in my life, I understand a bit of legalities but unfortunately I had a very serious health problem and still I have. My angiogram showed I have got 40 per cent blockage of my arteries, I got two arteries fully blocked 100 per cent, smaller branch arteries and I am trying to avoid an open‑heart surgery. I already have had three stents with my arteries and I been a sick man.
The point is, Tolhurst, who is doing the matter – my own mother had a stroke then and I was……she died.....when was 97. I got to tell your Honour my own mother grew up six of us after my father died in the war on her own and she was a passionate.....and she always told me, she say “My son, I want you to respect everybody in your life and I want you to fight…..right, I want you to fight to your death because you are a smart man with amount of passion, you must fight for your rights”. I still remember my mother’s words, your Honour. Maybe this not relevant but to me is very relevant because I believe, definitely here, I have been very badly dealt with by the solicitors when I sue this complaint to the Magistrates Court.
I have paid the barristers to appear and Mr Mark…..appear in the court three times. We claimed for about $20,000 damages, very conservatively, to fix it quickly. It took a long time to come to court. The point is when it come to court the order was for $8,500 damages and Tolhurst grabbed those moneys, all of them, as legal costs. Said it was paid to them by Mr Valentino, the solicitor for the other side, and he sent me another bill for another $7,500, Tolhurst. I was arguing with him “Look, I need the money to fix the verandah. You told me you would charge me.....maximum.” He said “No.....this…..” Anyway, he grab all his moneys. I got court orders here which the court awarded them – awarded the company 7,000 plus 1,450 exactly, interest, and no costs. The.....magistrate did not award the costs, although, as I understand, we have beaten the.....with about $600, and the barrister argues for the costs. Anyway, magistrate did not.....costs.
That is very short, your Honour. Tolhurst, I try to negotiate with them, that they took the…..but I cannot tell you any more. They took all the money and.....on my own, but they sue us. They sue us and, funnily enough, another two solicitors, they fail to engage us the barristers to come to the hearing of the Magistrates Court. I got the transcript of the case here, your Honour, which – who have paid Bullards the money to bring a barrister to the court on the hearing of 13 October. They assured me that they will transfer the case from the Magistrates Court to the County Court on 11 October 2005. They went to the court, Magistrates Court, to try to transfer the case to the County Court but they have failed to transfer the case and they did not get back to me after ringing and ringing until late 12 October.
I have paid them for the lawyers to have a barrister ready and for them to appear 11 October to transfer the case. They assure me they will come to court, “We’ll definitely get the case to the County Court”. The other claim was already 40,000 and then they said “We have to go over the 129,000 which are your losses”. Anyway, they failed to transfer the case to the County Court and they did not engage me a barrister. I have an argument with them late in 12 October 2005, always what.....took his time to respond to me in which I have got Mr Bullard to speak with me around 5.15 pm.....the court they.....you.
The point is, they say “Look, you got to go tomorrow to adjourn the case on your own because you haven’t got counsel, we haven’t got a barrister for you.” So I went to the magistrate this morning. I begged him to adjourn the hearing and offered him five, six times to pay the other side’s adjournment costs. That is what Mr Bullard advised me do. He came in the morning there to reopen the case and I said an argument was with him over the phone but the federal magistrate did not adjourn the hearing when I offered to pay the other side’s adjournment costs. I said I have been told even late afterwards that the magistrate had no option but to adjourn the hearing when I did not have a barrister there to represent me, and, of course, I was sick with my health problems and I could not try the case.
The point is the Magistrate Johns did not adjourn the hearing. I pleaded with him and eventually he called security to take me out of the court, and he phoned in my absence…..and he fined us about $16,800 legal costs. He threw our counter-claim out and he fined us so much money. I have got the order here I want to give your Honour. The point is one after the other, your Honour, solicitors were engaged to deal with this matter of ours after Tolhurst issued a statutory demand another solicitor,
Shayne Daley, who pay him about $500 to deal with the matter. He said “Don’t worry, leave it to me.” He failed to file the – to uphold the statutory demand within the 21 days and when I went to court, to my great surprise, the Master.....told him “No, you are late to file your application.....you must do it within 21 days” and he dismissed our application. One to the other, your Honour, I am flabbergasted when he is speaking.
On 19 June 2006 I have engaged other solicitors, Baker & Armstrong, and I have told them two months ago, three months ago to get me a top barrister to appear on 19 June and I have paid the money to them and I have paid money to.....for a barrister, which her name was Annette.....she used to work – Mr.....told me from.....he used to work with her.....or something and she was a top barrister for these matters and I spoke to her late in May 2006 that year, I spoke with her with the full file and she assure me “Don’t worry, this matter will win”.
Your Honour, to my complete surprise and disgust.....it was the Friday, the Friday which was I believe 16 or 17 June, that I receive a fax from Ms.....that Ms.....cannot be ready Monday as she has to go to Sydney. I just could not believe it. To cut the story short, your Honour, I definitely believe here that – I really believe that Tolhurst paid the other sides to let me down at all times. I do not want to sound like this, but there is no – definitely in my mind, that something wrong went through the system here that I have paid my solicitors and they did not have the barrister available for me at the last moment.
Then we spoke with Mr.....from Baker & Armstrong, I argue with him again, please, please.....adjourn this case any more, get me somebody else and.....somebody else, a Mr.....and we met with him Sunday the 18th and so and so, and he come to the court the 19th and he was speaking – he did not know if he was coming or going to the court your Honour, and Master Efthim sent......the time we had money in the bank, about $98,000 – actually, was prepared accounts to.....and Mr.....wife is a doctor of accounting, and she prepared properly. She put exhibits, the Bankwest statements and the other Commonwealth Bank statements, that we had in the bank cash, 60 or 70.....one bank, 15 in another, and 10 in another. We have chance to pay this 35,000 straight to the man.
The point, your Honour, is I have been advised wrongly and I have been treated wrongly I believe even by the system. I mean, I am not a whinger person by origin but I am a person who believe – I believe that justice must be given to somebody like me or justice given for everybody. The point, your Honour, is that if I knew – if this I would know that I would go through this hell I would have paid the money 10 times over.
The other thing, your Honour, is I have done my best from last year to discuss with the liquidator and I sent him letters in writing, I told him, “Please, I don’t blame you. You have been appointed by the court” this and that, but first of all the company is the company of my family trust and from what they have been told they know the company is a trustee only and this is trustee, those are the documents, these are the things that I have on many – because I am the appointer of the family trust on the schedule.
We had a meeting 9 August last year at the restaurant. I said to him I just cannot come up and down. I was very stressed out, I was in another world but – after the 23 June last year and I had other angiograms and I got some reports here for the first.....your Honour, which was another report which was done – another angiogram which was done on me earlier this year. It says 30 per cent stenosis, approximate 30 per cent stenosis of the.....95 per cent stenosis on second.....40 per cent stenosis in proximal left second place artery, 100 per cent stenosis on.....100 per cent on.....stent in proximal right coronary artery. The left shows – the left.....shows.....genetic.....and so forth and so on. I mean, I have got 200 per cent.....stenosis here. I have got 95 per cent stenosis, your Honour, and I want to avoid open-heart surgery.
Now, I could not have.....because he is engaged in another case and I have to do on my own but he prepare the documents.....I believe is the only man I found lately after so much.....and that that he believes in me, he says “Mr Velissaris, I will help you as much as I can because you have been very badly dealt with”. I want to say that this gentleman definitely, you know, helped me a bit – because I pay him – but he charge me very fairly I believe. I do not go and litigate, your Honour, I do not understand all the jargon of the law. I have been told different things by different solicitors and barristers and I now have spent thousands and thousands of dollars, and I am a person that I believe I must fight for my children.
I have got two kids. My daughter is expecting a baby now, she is bedridden, second son – second boy been told. She is an accountant and my young boy, son, he goes to Monash University. He lives down there. We got to pay for a flat of his, cannot live in Brunswick to go up and down and he is.....and the family – the.....is against me and say why you did pay this barrister.....understand I shall pay them and protest and so forth and so on.
But, your Honour, the irony is here that any blind man with his dog would have prosecuted a small complaint with the truck driver, Mr Robert Johns, because he admitted full liability and our insurer will not pay because they say “We see his report with insurance. You must sue him, take to courts, sue him and they got to pay and your costs.” GIO told us “We cannot pay because.....” the insurance company they say the one who is guilty they got to pay.
The point is it cost me so much money to get costs, so much.....when the truck hit and damaged the front verandah of the family trust property and destroy my business because I run a business there. The business has been mine since 1990. I have got the liquor licence in my name, I have got the business in my name, I have got all this money. The company was incorporated in 1998 when I had – when I first started back in 1997 and.....I nearly died and I was sick, and I was two or three payments behind with the Bank of Melbourne, more or less, you know, mortgage, without them giving us a notice, your Honour.
That is another thing which the Bank of Melbourne.....they did not even send notice to pay. They appointed a person to come and lock me out – lock us out. Now, because the company had a charge signed with the bank.....to come and..... The point is my daughter bought the property at auction with her own money and my own mother’s money. My own mother had a house, sold it, gave to my daughter and say “Look, I want you to buy the property” and that was it. I told daughter buy the property, is a very big property, I put the money since I bought it back in 1994 and is all my life work.
I can remember, your Honour, 4 January 1961 when I was a kid and I work very hard in my life, your Honour. I do my best, honestly to everybody. I have not tried to cheat anybody. I have not tried to do the wrong thing to anybody. But what is happening to me, your Honour, here, honestly speaking to God, this is the worst of the Greek tragedy - I never believe I would go through this hell. I have got to find some justice, your Honour, and what I have pleaded with your Honour is to give me a chance to prove to this honourable Court, you know, my points and I need the leave.
I need a stay of the Court’s order in a way to present to your Honour the position that I believe I am right and I believe I have been very badly dealt with. At the time I offered the liquidator last year in writing to tell me black and white, the letter which I sent.....we had a meeting and I show him all the documents. He say I never show him any document. I gave him everything, everything, your Honour. He did not want to take it, send him the other documents. The point is I have done my best to co‑operate with him and I got.....to the matter here but, your Honour, unfortunately they went on in litigation to try to do this, do that, and they go on and on and on that.....I want to pay you out.
The property, your Honour, is worth a lot of money. Not what they say on.....to me it is a complete insult when.....from 1965 to 1982. Then I went to buying and selling property. I have been in Brunswick since 1961, Brunswick, Carlton. I mean, I know the area, your Honour. Brunswick is my suburb.
HIS HONOUR: Mr Velissaris, I understand this and I understand the degree of passion you feel about your case. The immediate question is whether I should grant a stay of the execution.
MR VELISSARIS: Yes, your Honour.
HIS HONOUR: You say that you have been treated wrongly by the system. You have explained why you hold that feeling. I have read your written document. Is there anything more you wish to say about why you should have a stay of proceedings?
MR VELISSARIS: Your Honour, what I want to say I put on my submissions here, which Mr Selimi helped me out ‑ ‑ ‑
HIS HONOUR: Yes I have read those, and I believe I understand ‑ ‑ ‑
MR VELISSARIS: Yes, all right. So I believe they are not going to be prejudiced, they are not going to prejudice us whatsoever if we have a stay and we deal with the merits of the case, your Honour, because I believe there are a lot of serious questions of law, Mr Selimi told me, to be answered, first of all, in that the property does not belong to the trustee company.
HIS HONOUR: Yes, I think you are now repeating yourself, are you not, Mr Velissaris? I think you have said that to me before, both in writing and orally. Yes, is there anything fresh you would wish to add?
MR VELISSARIS: Your Honour, I do not want to make it difficult, but I believe I must be given a chance to have a stay and deal with the matter and I will try to negotiate with the other side to solve the matter, to pay them out. I told them long time ago. I want to settle the matter, your Honour. The point is I cannot mortgage the property. The property, we had the estimation – valuation from these three respective agents. They seen it inside, they calculated and they say the property here is worth easily a couple of million. I mean, easily. I have got solicitors.....and others to give us the money, but we cannot put the.....down to mortgage. I have spoken to.....give us a written.....if we pay you out you release the title so we can mortgage. No bank would touch me, your Honour. First time in my life I just cannot borrow a dollar. This is my biggest frustration, your Honour.
I do not.....money for the sake of money, your Honour. It is a matter here of grave injustice on my part I believe I have been – have been told to me. I want to pay them out even whatever – not exuberant.....but we will negotiate and we will pay them out. I told them in writing. I have got a letter that I put in my affidavit in 15 June, I think, which his Honour did not accept because there was no leave given. I have got the letters there have been sent to them.....tell me in black, how much are the costs of now and.....we pay you to release the property. If I have it in writing I will go to a lender, here is – who can give you title, give us the money. They will not.....valuation on the property to get the money when I have million plus.
HIS HONOUR: Well, Mr Velissaris, it is I think important that you recognise that the proposition that you should have access to the property in order to mortgage it to raise funds does not sit easily with the proposition that the property is held on trust for others.
MR VELISSARIS: I am sorry?
HIS HONOUR: You say that the property is held on trust for your family.
MR VELISSARIS: Yes.
HIS HONOUR: Yet you are telling me now that you should have access to the property so that you may mortgage it to raise money. The two propositions do not stand. Now, is there anything else you would wish to add in support of your application for stay?
MR VELISSARIS: Your Honour, it is not that I want the property to – my beneficiaries to mortgage the property, yes, yes.
HIS HONOUR: Yes, very well. Is there anything else you wish to say in support of your application for stay?
MR VELISSARIS: Your Honour, what I want to say is in the case of Suco Gold Case I believe, which they want to rely Suco Gold Case is distinguishable from this case because in this case I am relying on section 45 and section 2 of the Trustee Act. In this case I have removed the right of.....of the trustee since 15 July 2005 validly legally on the trust deed. Is a company, is a trustee company with a discretionary trust and I am not.....trust. I have got the trust deed here. The provision in the trust deed.....I cannot remove the trustee and I cannot vary the trust deed under section 16 when I give the written consent to the trustee as the appointor of the family trust. There is a per cent to amend the trust deed or the provisions as I think fit, and I have done that, your Honour, legally and properly and all the things have been attached to the trust deed.
Now, 15 July I have amended the clause.....that the trustee company is not going to be idemnified out of the family trust assets. This was done validly and legally.....the trust deed, more or less, you know, closes, which is – they are clear, if you want to see that one, your Honour.
HIS HONOUR: Mr Velissaris, you have filed the material upon which you rely.
MR VELISSARIS: Yes, your Honour.
HIS HONOUR: What I need to know is why I should order a stay of execution. The Court of Appeal held that your cases were hopeless, so hopeless that they should be brought to an end at once without going to a full hearing. Why should I order a stay of the judgment which was given at trial? What is it about your case that would warrant this Court taking the matter on appeal?
MR VELISSARIS: Because, your Honour, I believe there are serious questions of law and serious questions of facts to be tried. I believe Justice Dodds‑Streeton took it wrong.....do not accept my evidence and, secondly, I have not given a chance to be cross-examined to verify my truthfulness or my latest affidavits. Yes, one affidavit last year was wrong, the wrong advice.....then because I say the business belong to the company, but here I have not been given leave, the door was shut on my face from the honourable Justice Dodds‑Streeton and the honourable Appeal Court judges without giving us leave under section 471 to put my case properly. We have been shut the door.
Your Honour, I have not been – the merits of the case have not been dealt with here, I believe, and I strongly believe, as have been explained by Mr Selimi and two or three others, like very senior counsel, Mr Panna who prepared me the application of 30 March under section 471. Andrew Panna is a.....and he did not charge me any money because he felt sorry for me. I was telling him to apply that.....to stop the liquidation. He say, “No, you better do it this way”.
Now, I am.....man, I listen to them. I know only, your Honour, that the merits of the case here have not been dealt with and I believe I deserve, or my family trust people deserve to be heard and dealt with in a court of law and I believe, your Honour, I still have not lost faith in Australian system. I have been here since…..and I believe Australia is a fair place and a good democratic country and from my roots and my origin, your Honour, I want to say, and I am proud of it that my.....thousands of years. I am.....ancient Greeks.....they say, believe in your rights and speak your mind out freely.
Your Honour, that is what I believe, and I believe I must be given the chance as a human being to prove my point and at the same time I give you my word, your Honour, I will negotiate with the other side here to settle the matter. I got people to lend the money to my family members. Pay them out. It is not good, your Honour, to sell this property. It is all my life’s work, all my life’s work, your Honour, honesty, working hard and honestly. I got my children to look after and I got to look after them properly. My young boy is a very bright boy, goes to university, he does his best.
Your Honour, I believe I must be given a chance. If they have got nothing to fear or worry about, who want to – I been told by my daughter, “Dad, pay the people out, we will negotiate to pay them out”. It is not good to put the property ‑ ‑ ‑
HIS HONOUR: Mr Velissaris, be quiet. You have told me that several times. Now, I understand that, you do not need to repeat it. Is there anything further you wish to say?
MR VELISSARIS: No, your Honour, thank you very much.
HIS HONOUR: Yes, thank you, Mr Velissaris. Yes, Mr Gardiner.
MR GARDINER: Your Honour, of course, on these types of applications there are several matters to be considered. First, whether there is a substantial prospect that special leave will be granted. We say that in this instance the appeal appears to involve questions of fact, not law. There is no aspect of public importance by way of general application or otherwise. There is no requirement in this instance to resolve differences of opinion between different courts as to the stated law nor could it be said that this is a case which requires consideration by the Court because of the interests of justice, either generally or in this particular case. There, of course, have to be shown special or exceptional circumstances and, in my submission, none have been pointed to.
HIS HONOUR: Do you accept that refusal of a stay effectively will bring the application for leave to an end?
MR GARDINER: Yes, I do. Our intention is to sell the property, your Honour.
HIS HONOUR: So it then becomes a case, does it not, which turns entirely on the prospects of success?
MR GARDINER: Yes, it does.
HIS HONOUR: Do I understand what has happened in the courts below are right? If I understand it as the Court of Appeal terminating both the application for leave and the application for reinstatement or refusing the application for reinstatement ‑ ‑ ‑
MR GARDINER: Dismissing those applications, yes.
HIS HONOUR: ‑ ‑ ‑ summarily on the basis that an appeal in either matter enjoyed no reasonable prospect of success?
MR GARDINER: That is correct, your Honour.
HIS HONOUR: Do I understand the issues that it was sought to agitate in the Court of Appeal to depend in critically important respects upon overturning findings of fact made at trial?
MR GARDINER: Yes, your Honour.
HIS HONOUR: In the end does it come to, in those circumstances, it is unlikely that leave would go in this Court? Is that the essence of it?
MR GARDINER: In my submission, yes, your Honour.
HIS HONOUR: Yes. I think I understand the propositions, Mr Gardiner.
MR GARDINER: In addition to that, your Honour, we point to the materials in Mr Fitzgerald’s affidavit as to the balance of convenience and the prejudice to the creditors. It is reaching a situation where there will be no dividend creditors because of the costs and the length of time this has run. The capitalisation of the ‑ ‑ ‑
HIS HONOUR: Yes, I am not sure that balance of convenience considerations really – I understand why you seek to put something into the opposite pan, but from the applicant’s point of view the balance is wholly his way, is it not?
MR GARDINER: Yes, your Honour. Thank you, your Honour.
HIS HONOUR: You say there are some competing considerations?
MR GARDINER: Yes.
HIS HONOUR: Yes. Yes, well, I understand that.
MR GARDINER: Yes. Thank you, your Honour.
HIS HONOUR: Yes, thank you. Now, Mr Velissaris, the case against you is the Court of Appeal thought your appeals were hopeless. There is no reasonable prospect of this Court granting special leave to appeal. That is the case against you. Is there anything you want to say in reply to that argument?
MR VELISSARIS: Your Honour, want I want to say, I believe there are very good prospects of winning the appeal. That is what I have been told by two barristers lately, apart from Mr Selimi. I get different opinions. And Mr…..and another barrister, Mr.....“You have got good prospects to
appeal. You have not been given the chance to give even cross – to be cross-examined too”. All right, I admit some of my previous affidavits they were wrong because that is the kind of advice I get from advisers – they were done in the last moment in a hurry but my two last affidavits been done by Mr Selimi and I believe they are correct and I rely on Mr Selimi’s advice that definitely if we would be given a chance definitely we would win the appeal. That is what I have been told, your Honour.
I honestly, your Honour, believe, I strongly believe, that justice has been denied and I am living a hell of a tragedy. I must be given a chance, your Honour, for God’s sake. I beg you to give me the chance to put my case together. As I told your Honour earlier, and I tell you gentlemen here, I will negotiate again with them to settle the matter until the appeal comes on. I cannot go on and on fighting. I am a sick man, your Honour, I do not want to fight, I do not, but here I am forced to because they brought the proceedings on this occasion to prove this and that, it will cost thousands of dollars for nothing. I am not in a position to fight, your Honour, but I must be given a chance to receive justice.
I have been told and I believe the appeal would succeed. It is no problem at all because the 471 application should have been dealt with. We have been twice shut the door by Justice Dodds‑Streeton and by the Appeal Court judges, that is why I came to this highest Court in the land, your Honour, and I please beg you to give me the chance here.
HIS HONOUR: Yes, thank you, Mr Velissaris.
In June 2007, Justice Dodds‑Streeton sitting in the Corporations List of the Commercial and Equity Division of the Supreme Court of Victoria heard two related proceedings. In one proceeding application was made by Mr Velissaris, the applicant in this Court, for leave to appeal from the decision of a master declaring a purported lease between Maryvell Investments Proprietary Limited, now in liquidation, and Mr Velissaris in respect of a property at 333-335 Sydney Road, Brunswick to be void and unenforceable, together with an associated application by Mr Velissaris for leave to proceed against the company in liquidation and its liquidator for declarations concerning his entitlement to an interest in the land.
The second proceeding heard by Justice Dodds‑Streeton was a proceeding brought pursuant to the summary procedures under order 53 of the relevant rules of the Supreme Court by which the company in liquidation sought recovery of possession of the land.
On 2 August 2007 her Honour published reasons for decision disposing of the proceedings before her. The application for leave to appeal from the orders of the master was refused. The application for leave to proceed against the company in liquidation was dismissed. The company in liquidation obtained judgment for recovery of possession of the land. Mr Velissaris was ordered by pay the costs of all of the proceedings.
Mr Velissaris applied to the Court of Appeal of Victoria for leave to appeal against the interlocutory orders, refusing him leave to appeal against the master’s order, and refusing him leave to proceed against the company in liquidation. He instituted an appeal against the judgment for possession of land, but failed to file his list of proposed contents of appeal book within the time fixed by the rules and his appeal was deemed abandoned. He applied to the Court of Appeal for orders reinstating that appeal and he also applied for orders staying execution of the judgment for possession.
In the Court of Appeal Justices Buchanan and Redlich dismissed Mr Velissaris’ application for leave to appeal against the interlocutory orders of the primary judge, dismissed his application for stay of execution of the judgment for possession, and dismissed his application for reinstatement of the appeal he had instituted against the judgment for possession.
Despite dismissing the substantive application for stay, and the proceedings in which the application for stay was made, the Court of Appeal granted an extension of a stay granted by the primary judge for a further 14 days so that the applicant might apply to this Court for a further stay of proceedings pending the hearing and determination of applications for special leave to appeal. Mr Velissaris has now instituted applications for special leave to appeal, filing those applications on 17 September.
He now applies, in the application for special leave that arises out of the refusal to reinstate his appeal to the Court of Appeal against the judgment for possession, for orders extending the stay of execution of that judgment for possession pending hearing and determination of his application for special leave. Although the application for stay is made in the application for special leave relating to the proceedings seeking possession Mr Velissaris argued that the application for stay should be treated as if it were an application made in relation to all of the proceedings that he had pending in the Court of Appeal and which are now the subject of applications for special leave to appeal to this Court.
In JenningsConstruction Limited v Burgundy Royale Investments Proprietary Limited[No 1] (1986) 161 CLR 681 at 684, Justice Brennan said:
When an application for special leave to appeal is made to this Court, a jurisdiction to stay may be exercised by the court below and it is to that court – the court in which the matter is pending and which is familiar with the matter – that an application to stay should first be made. In this case the Court of Appeal, not wishing to pre‑empt the view that may be expressed in this Court, tailored its order accordingly. In future, there should be no inhibition on the court in which the matter is pending framing a stay order, if a stay be appropriate, to avoid the necessity for application to this Court.
The particular circumstances of the proceedings before the Court of Appeal yield an unpromising platform upon which that court might be called upon to consider the granting of a stay order pending application for special leave to this Court. The proceedings in the Court of Appeal, taking the form they did of application for leave to appeal coupled with application for reinstatement of an appeal as of right that had been deemed abandoned, were proceedings which were disposed of on the basis that the appeals contemplated by Mr Velissaris had no reasonable prospect of success.
That being the conclusion reached by the Court of Appeal, it is then perhaps unsurprising that that court declined to grant more than a temporary stay of execution of the judgment for possession. Nonetheless, for the reasons given by Justice Brennan in Burgundy Royale it is often better that questions of stay of execution of the process of the court from which special leave to appeal is sought dealt with completely in that court rather than deferred for further consideration in this Court.
In support of his application for stay Mr Velissaris went back into a degree of history lying behind the proceedings that immediately give rise to the applications for special leave in this Court. Before the primary judge Mr Velissaris’ then counsel described the proceedings in the Supreme Court as forming:
part of a piece of unfortunate litigation which commenced when a truck struck the property situated at 335 Sydney Road, Brunswick in 2002, which then gave rise to a spiralling series of legal proceedings involving the company and its previous solicitors, culminating in the liquidation of the company and the appointment of a liquidator at the behest of the company’s previous solicitors, Messrs Tolhurst, Druce and Emmerson, on 19 June 2006.
Mr Velissaris laid considerable emphasis on what he saw to have been the way in which the legal system had treated him wrongly, leading as his counsel had put it to the primary judge to “a piece of unfortunate litigation which then gave rise to a spiralling series of legal proceedings”.
Mr Velissaris further gave some emphasis to his present state of health and to what he expressed as his continued desire to settle the claims which ultimately lie behind the presently pending proceedings. These matters, though urged by Mr Velissaris, are matters which lie at one remove from the issues which must be determined in considering the application for a stay.
If a stay is not granted, there would be little practical utility left in Mr Velissaris’ applications for special leave to appeal to this Court. Further, it is always to be recalled that, so far as the evidence reveals, Mr Velissaris conducts a continuing business from the premises which are the subject of the litigation and, presumably, if a stay is refused the continued conduct of that business would at least be impeded if not brought to an end entirely.
Those considerations weigh heavily in evaluating the balance of convenience between the parties. Against them the liquidator of Maryvell Investments pointed to a number of considerations, which may be summarised as being that the continuation of litigation sees a continued incurrence of costs with inevitable diminution of return to creditors.
For present purposes, although the matters mentioned on behalf of the liquidator are not without their weight, it is appropriate to approach the application for stay on the footing that the balance of convenience lies entirely in favour of Mr Velissaris. The balance of convenience is, however, not the only factor that is to be considered in determining whether the grant of stay pending hearing and determination of an application for special leave to appeal.
It is necessary to examine whether there is a sufficiently substantial prospect of special leave being granted. At this early stage of the preparation of the application for special leave, care must be exercised in attempting any assessment of the likely prospects of success of an application for special leave. In the present matters, however, it is of special importance to recognise that in neither application for special leave does the applicant contend that any point of principle of general application would arise. Rather, the draft notices of appeal reveal that the essential complaint made by Mr Velissaris in each matter is that the Court of Appeal erred in identified respects in the exercise of its discretion. His essential complaint, as articulated in the course of oral submissions, was that his cases have been disposed of without his ever having had an opportunity to put full argument in their support.
It is also important to recognise that the applications for leave to appeal to the Court of Appeal and the notice of appeal that was filed in the Court of Appeal reveal that the complaints which Mr Velissaris sought to agitate in the Court of Appeal hinged about particular findings of fact that had been made in the proceedings below. Those findings of fact were, to a considerable extent, based upon the primary judge’s assessment of the evidence, having regard in particular to her conclusion that Mr Velissaris was, as she described him, “an unreliable and self-serving deponent” (Tolhurst Druce & Emmerson v Maryvell Investments Pty Ltd [2007] VSC 271 at 207.
The Court of Appeal concluded that the decisions of the primary judge, which Mr Velissaris sought to challenge by appeal to that court, were decisions that were not attended by doubt. Mr Velissaris has not, in his application for special leave, his draft notice of appeal or any of the submissions made today, identified any basis for challenging the Court of Appeal’s conclusions.
In support of his application today Mr Velissaris handed to me written submissions which he informed me had been prepared with the assistance of counsel. Neither those written submissions nor anything said in the course of oral argument identified any sufficient basis for challenging the conclusions reached by the Court of Appeal.
In all these circumstances, I am not persuaded that it would be in the interests of justice to grant any further stay of execution of the judgment for possession of the land. The application for stay is therefore dismissed. It must be dismissed with costs.
MR GARDINER: If your Honour pleases.
AT 10.48 AM THE MATTER WAS CONCLUDED
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