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Ventura v Higgins

Ventura v Higgins

Case [2018] NSWSC 909 21 June 2018

Stay of Proceedings

Costs

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Ventura v Higgins [2018] NSWSC 909
Hearing dates: 27 April 2018
Decision date: 21 June 2018
Jurisdiction: Equity
Before: Robb J
Decision:
See paragraph 55

Catchwords: CIVIL PROCEDURE — Stay of proceedings — s 135 of the Civil Procedure Act 2005 (NSW) – Inherent power — whether a judgment for costs against the applicants should be stayed until a separate order for costs against the respondents is quantified by assessment
Legislation Cited: Legal Profession Uniform Law Application Act 2014 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Civil Procedure Act 2005 (NSW)
Cases Cited: Ventura v Higgins [2018] NSWDC 49
Barescape Pty Limited as trustee for The V's Family Trust & Anor v Bacchus Holdings Pty Limited as trustee for The Bacchus Holdings Trust & Anor (No 9) [2012] NSWSC 984
Limited as trustee for The V's Family Trust & Anor v Bacchus Holdings Pty Ltd as trustee for The Bacchus Holdings Trust & Anor (No 10) [2012] NSWSC 1275
Barescape Pty Limited as trustee for the V’s Family Trust & Anor v Bacchus Holdings Pty Limited as trustee for the Bacchus Holdings Trust & Anor (No 12) [2012] NSWSC 1591
O'Neill v Williams [2007] NSWSC 51
Australian Receivables Ltd V Tekitu Pty Ltd (Subject to Deed of Company Arrangement) (Deed Administrators Appointed) [2011] NSWSC 1425
Anthony Simon Bell v Rittal Pty Ltd [2013] NSWSC 398
Wentworth v Wentworth [1996] NSWCA 553 (BC9600213)
Category: Procedural and other rulings
Parties: Bacchus Holdings Pty Limited (First Applicant/Second Defendant)
Matthew Gordon Higgins (Second Applicant/First Defendant)
Barescape Pty Limited (First Respondent/Second Plaintiff)
Anthony Ventura (Second Respondent/First Plaintiff)
Representation:
Counsel:
D Barnett (Applicants/Defendants)
Solicitors:
Bilbie Dan Solicitors (Applicants/Defendants)
Ventura Lawyers (Respondents/Plaintiffs)

File Number(s): 2017/316734

Judgment

The applicants seek an order pursuant to s 135 of the Civil Procedure Act 2005 (NSW) and the inherent jurisdiction of the Court, that a judgment for costs against them in favour of the respondents be stayed until an order for costs that one of the applicants has obtained against the respondents is quantified by assessment.
Section 135 of the Civil Procedure Act relevantly provides:

135 Directions as to enforcement
(1)   The court may, by order, give directions with respect to the enforcement of its judgments and orders.
(2)   Without limiting subsection (1), the court may make any of the following orders:
…
(c)   an order prohibiting any other person from taking any further action, either permanently or until a specified day, to enforce a judgment or order of the court,
…

The application was commenced by notice of motion filed in the District Court of New South Wales at Newcastle on 15 February 2018.
On 6 March 2018, Ashford DCJ granted a short stay of execution pending a full hearing of the motion. The hearing took place before Gibson DCJ, who published her reasons for judgment in Ventura v Higgins [2018] NSWDC 49 on 14 March 2018.
Her Honour made an order pursuant to ss 140 and 144 of the Civil Procedure…

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.

Continue reading Ventura v Higgins

Details

AGLC: Ventura v Higgins [2018] NSWSC 909
Case: [2018] NSWSC 909
Decision Date: 21 June 2018

CaseChat Overview and Summary

The applicants, Ventura, sought a stay of proceedings against the respondents, Higgins, pursuant to section 135 of the Civil Procedure Act 2005 (NSW). The application was made in the Supreme Court of New South Wales, following a judgment in favour of the applicants on their claim for damages. The applicants contended that a stay was necessary to avoid an injustice where they would be required to pay costs to the respondents without knowing the amount of costs that would be awarded against the respondents in a separate proceeding. The respondents opposed the application, arguing that the applicants had not demonstrated that the judgment for costs should be stayed.

The court considered whether it had the power under section 135 of the Civil Procedure Act 2005 (NSW) to stay the judgment for costs until a separate order for costs against the respondents was quantified. The court noted that section 135 provided for the stay of proceedings where it was just to do so, and that this included the power to stay a judgment for costs until a separate order for costs was quantified. The court also considered the inherent power of the court to stay proceedings where it was just to do so. The court found that it had the power to stay the judgment for costs until a separate order for costs against the respondents was quantified.

The court found that it was just to stay the judgment for costs until a separate order for costs against the respondents was quantified. The court noted that the applicants had not been given an opportunity to assess the amount of costs they would be required to pay to the respondents, and that this was an injustice that could be remedied by staying the judgment for costs. The court also noted that the applicants had not been given an opportunity to assess the amount of costs that would be awarded against the respondents in a separate proceeding, and that this was a further injustice that could be remedied by staying the judgment for costs. The court therefore granted the application and stayed the judgment for costs until a separate order for costs against the respondents was quantified.

Orders