Ventura v Higgins - [2018] NSWDC 49

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Ventura v Higgins [2018] NSWDC 49
Hearing dates: 13 March 2018
Date of orders: 14 March 2018
Decision date: 14 March 2018
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Pursuant to ss 140 and 144 Civil Procedure Act 2005 (NSW) these proceedings are transferred to the Supreme Court Equity Division for the hearing of the defendants’ Notice of Motion filed on 15 February 2018.
(2) The registry of the District Court is to obtain a date for the hearing of the application in the Supreme Court on an urgent basis within seven (7) days if possible.
(3) The stay order made by Ashford DCJ on 6 March 2018 to continue until further order.
(4) Written submissions concerning costs of the notice of motion (including the costs of proceedings before other judges of this court) to be exchanged by 5 pm Monday 19 March 2018.
(5) Replies to submissions on costs to be exchanged by Wednesday 21 March 2018.
(6) Matter relisted for argument on Friday 23 March 2018 before Gibson DCJ in the Newcastle District Court sittings.

Catchwords: PRACTICE AND PROCEDURE – plaintiffs are successful in a claim against two defendants in 2012 – corporate defendant is successful in a cross-claim against the plaintiffs – plaintiffs have their costs assessed from 2013 onwards but the cross-claimant refuses to have its costs assessed at the same time - plaintiffs obtain judgment in 2017 in the District Court on a costs certificate for $538,311.43 – plaintiffs seek to enforce the judgment against the defendants by commencing bankruptcy proceedings against the defendant in person – cross-claimant commences application for costs assessment in 2018 – both defendants then seek orders staying enforcement pursuant to s 135 Civil Procedure Act 2005 and/or “the inherent jurisdiction of the court”, as well as upon equitable principles of set-off – whether the District Court has jurisdiction to hear the application – whether proceedings should be transferred by the court of its own motion to the Supreme Court pursuant to ss 135 and 140 Civil Procedure Act - whether the defendants’ request to stay enforcement until further order, so that they can commence proceedings in the Supreme Court, should be granted – significant and inadequately explained delay by cross-claimant in seeking assessment of costs which is likely to continue – proceedings transferred to Supreme Court pursuant to ss 140 and 144 Civil Procedure Act.
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56 – 62, 98, 135, 140 and 144
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited: Australian Beverage Distributors Pty Ltd v Evans & Tate Premium Wines Pty Ltd [2007] NSWCA 57
Barescape Pty Ltd v Bacchus Holdings Pty Ltd (No 12) [2012] NSWSC 1591
Griffiths v Australian Broadcasting Corporation [2013] NSWSC 750
In the matter of Optimisation Australia Pty Ltd (Costs) [2018] NSWSC 280
Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46
Lemoto v Able Technical Pty Ltd…

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] NSWDC 49
Case: [2018] NSWDC 49
Decision Date: 14 March 2018

CaseChat Overview and Summary

Ventura was successful in a claim against Higgins and another entity in 2012. The corporate defendant was successful in a cross-claim against the plaintiffs. The plaintiffs had their costs assessed from 2013 onwards but the cross-claimant refused to have its costs assessed at the same time. In 2017, the plaintiffs obtained judgment in the District Court on a costs certificate for $538,311.43. The plaintiffs sought to enforce the judgment against the defendant in person. The cross-claimant commenced application for costs assessment in 2018. Both defendants then sought orders staying enforcement pursuant to section 135 Civil Procedure Act 2005 and/or “the inherent jurisdiction of the court”, as well as upon equitable principles of set-off.

The court was required to decide whether the District Court had jurisdiction to hear the application. The court also had to consider whether proceedings should be transferred by the court of its own motion to the Supreme Court pursuant to sections 135 and 140 Civil Procedure Act. The court had to determine whether the defendants’ request to stay enforcement until further order, so that they can commence proceedings in the Supreme Court, should be granted. The court found that the cross-claimant had exhibited significant and inadequately explained delay in seeking assessment of costs which was likely to continue. The court concluded that the proceedings should be transferred to the Supreme Court Equity Division for the hearing of the defendants’ Notice of Motion.

The court ordered that the proceedings be transferred to the Supreme Court Equity Division for the hearing of the defendants’ Notice of Motion filed on 15 February 2018. The registry of the District Court was to obtain a date for the hearing of the application in the Supreme Court on an urgent basis within seven (7) days if possible. The stay order made by Ashford DCJ on 6 March 2018 was to continue until further order. Written submissions concerning costs of the notice of motion (including the costs of proceedings before other judges of this court) were to be exchanged by 5 pm Monday 19 March 2018. Replies to submissions on costs were to be exchanged by Wednesday 21 March 2018. The matter was relisted for argument on Friday 23 March 2018 before Gibson DCJ in the Newcastle District Court sittings.

Orders

Orders of the court

(1) Pursuant to ss 140 and 144 Civil Procedure Act 2005 (NSW) these proceedings are transferred to the Supreme Court Equity Division for the hearing of the defendants’ Notice of Motion filed on 15 February 2018.

(2) The registry of the District Court is to obtain a date for the hearing of the application in the Supreme Court on an urgent basis within seven (7) days if possible.

(3) The stay order made by Ashford DCJ on 6 March 2018 to continue until further order.

(4) Written submissions concerning costs of the notice of motion (including the costs of proceedings before other judges of this court) to be exchanged by 5 pm Monday 19 March 2018.

(5) Replies to submissions on costs to be exchanged by Wednesday 21 March 2018.

(6) Matter relisted for argument on Friday 23 March 2018 before Gibson DCJ in the Newcastle District Court sittings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Ventura v Higgins [2018] NSWDC 49
Hearing dates:	13 March 2018
Date of orders:	14 March 2018
Decision date:	14 March 2018
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Pursuant to ss 140 and 144 Civil Procedure Act 2005 (NSW) these proceedings are transferred to the Supreme Court Equity Division for the hearing of the defendants’ Notice of Motion filed on 15 February 2018. (2) The registry of the District Court is to obtain a date for the hearing of the application in the Supreme Court on an urgent basis within seven (7) days if possible. (3) The stay order made by Ashford DCJ on 6 March 2018 to continue until further order. (4) Written submissions concerning costs of the notice of motion (including the costs of proceedings before other judges of this court) to be exchanged by 5 pm Monday 19 March 2018. (5) Replies to submissions on costs to be exchanged by Wednesday 21 March 2018. (6) Matter relisted for argument on Friday 23 March 2018 before Gibson DCJ in the Newcastle District Court sittings.
Catchwords:	PRACTICE AND PROCEDURE – plaintiffs are successful in a claim against two defendants in 2012 – corporate defendant is successful in a cross-claim against the plaintiffs – plaintiffs have their costs assessed from 2013 onwards but the cross-claimant refuses to have its costs assessed at the same time - plaintiffs obtain judgment in 2017 in the District Court on a costs certificate for $538,311.43 – plaintiffs seek to enforce the judgment against the defendants by commencing bankruptcy proceedings against the defendant in person – cross-claimant commences application for costs assessment in 2018 – both defendants then seek orders staying enforcement pursuant to s 135 Civil Procedure Act 2005 and/or “the inherent jurisdiction of the court”, as well as upon equitable principles of set-off – whether the District Court has jurisdiction to hear the application – whether proceedings should be transferred by the court of its own motion to the Supreme Court pursuant to ss 135 and 140 Civil Procedure Act - whether the defendants’ request to stay enforcement until further order, so that they can commence proceedings in the Supreme Court, should be granted – significant and inadequately explained delay by cross-claimant in seeking assessment of costs which is likely to continue – proceedings transferred to Supreme Court pursuant to ss 140 and 144 Civil Procedure Act.
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56 – 62, 98, 135, 140 and 144 Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited:	Australian Beverage Distributors Pty Ltd v Evans & Tate Premium Wines Pty Ltd [2007] NSWCA 57 Barescape Pty Ltd v Bacchus Holdings Pty Ltd (No 12) [2012] NSWSC 1591 Griffiths v Australian Broadcasting Corporation [2013] NSWSC 750 In the matter of Optimisation Australia Pty Ltd (Costs) [2018] NSWSC 280 Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46 Lemoto v Able Technical Pty Ltd…