Vesuvius Australia Pty Ltd v and M Davidovic Pty Limited
[2011] NSWSC 638
•24 June 2011
Supreme Court
New South Wales
Medium Neutral Citation: Vesuvius Australia Pty Ltd v V & M Davidovic Pty Limited [2011] NSWSC 638 Hearing dates: 24 June 2011 Decision date: 24 June 2011 Jurisdiction: Equity Division Before: Biscoe AJ Decision: (1) Order for payment of security deposit stayed until 30 June 2011.
(2) Costs in favour of plaintiff payable forthwith.
(3) Order 2 stayed until 5 July 2011.
Catchwords: ORDERS:-whether order for return of security deposit should be stayed for a period to enable defendant to obtain legal advice as to an appeal.
COSTS:-whether costs of discrete issue should be payable forthwith but stayed for a period to enable defendant to obtain legal advice as to an appeal.Legislation Cited: Supreme Court Rules 1970 Part 52A, r 9(1)
Uniform Civil Procedure Rules 2005 r 42.7Cases Cited: Fiduciary Ltd v Morningstar Research Pty Ltd [2002] NSWSC 432, 55 NSWLR 1
Vesuvius Australia Pty Ltd v V & M Davidovic Pty Ltd [2011] NSWSC 539
Vesuvius Australia Pty Ltd v V & M Davidovic Pty Ltd [2011] NSWSC 573Category: Procedural and other rulings Parties: Vesuvius Australia Pty Ltd (Plaintiff/First Cross Defendant)
V & M Davidovic Pty Ltd (First Defendant/Cross Claimant)
Paul Armitage (Second Cross Defendant)Representation: Mr P T Russell (Plaintiff)
Mr N Allen (First Defendant)
Pikes Lawyers (Plaintiff)
John McEncroe & Co (First Defendant)
File Number(s): 2010/0084991
EX TEMPORE Judgment
I gave judgment in this matter on 9 June 2011, holding that the plaintiff was entitled to the release of a security deposit: Vesuvius Australia Pty Ltd v V & M Davidovic Pty Ltd [2011] NSWSC 539. Other aspects of the proceedings are still to be litigated.
Stay of order re return of security deposit
On 14 June 2011 I ordered, on the application of the defendant, that Order 6 made on 9 June 2011 be stayed until today, 24 June 2011: Vesuvius Australia Pty Ltd v V & M Davidovic Pty Ltd [2011] NSWSC 573. Order 6 was in the following terms:
Order that within three business days of the date of this order, the defendant do all things and execute all such documents as may be necessary to procure the release of the funds standing to the credit of such account and deliver such documents to the solicitors for the plaintiff.
I am now dealing with a further motion by the defendant to extend that stay until 8 July 2011 or thereabouts, which is said to be the time by which an application for leave to appeal against my judgment has to be filed.
The defendant company did not have legal representation at the two earlier hearings before me. In my reasons for judgment on the earlier stay application, I noted that it had been indicated by the defendant that it was not able to fund legal advice and representation at the moment, but was expecting receipt of substantial funds which it intended to use to retain lawyers. I noted that if it were then decided on legal advice to appeal my decision and an appeal were instituted, the funds in the meantime would have been paid out of the account as a result of Order 6. I decided that it was appropriate to order a stay for a reasonably short period to give the defendant the opportunity to fund and obtain legal advice in respect of my judgment. I was told by Mr Davidovic, a director of the defendant company who appeared on its behalf, that a stay until today would be sufficient for that purpose.
It is now said on behalf of the defendant that the funds which the defendant is expecting to receive to fund legal advice relating to an appeal should be received by next Tuesday, 28 June 2011, and that senior counsel is to be briefed to advise on the prospects of an appeal. It has also been said that Mr Davidovic has been continuing to suffer ill health which has impaired his powers of concentration.
The plaintiff opposes any further extension of the stay of Order 6. The plaintiff says that (a) the defendant has done nothing to date to progress any possible appeal; (b) it does not accept statements from the bar table as to Mr Davidovic's health; (c) it is the plaintiff's money that is at stake and that all it seeks is that the defendant comply with the terms of the parties' agreement to give the money back; (d) any proposition that it should not be given back to the plaintiff is unarguable; (e) there is no suggestion that it would not be in a position to repay the money if an appeal were to be instituted and were to succeed; (f) even now the defendant has a further three days available before it has to comply with Order 6; and (g) the security deposit is in an interest bearing account.
Notwithstanding that there is weight in some of the matters put on behalf of the plaintiff, I am, on balance, prepared to extend the stay for another four working days. According to what I have been told today and taking into account that Order 6 has to be complied with within three business days thereafter, that should be sufficient time for the defendant to fund and obtain advice from senior counsel as to whether to appeal my main decision.
Accordingly, I propose to order that Order 6 made on 9 June 2011 be stayed until 30 June 2011.
Stay of costs order
The plaintiff seeks an order that the costs order I made in its favour on 9 June 2011, Order 8, be payable forthwith: Vesuvius Australia Pty Ltd v V & M Davidovic Pty Ltd [2011] NSWSC 539.
Rule 42.7 of the Uniform Civil Procedure Rules 2005 relevantly provides:
42.7 Interlocutory applications and reserved costs
(1) Unless the court orders otherwise, the costs of any application or other step in any proceedings...are to be paid and otherwise dealt with in the same way as the general costs of the proceedings.
(2) Unless the court orders otherwise, costs referred to in subrule (1) do not become payable until the conclusion of the proceedings.
In Fiduciary Ltd v Morningstar Research Pty Ltd [2002] NSWSC 432, 55 NSWLR 1 at [11] - [13] Barrett J considered the predecessor of this rule in Part 52A r 9(1) of the Supreme Court Rules 1970 and identified three factors which may incline the Court to order that costs be payable forthwith (omitting some citations):
11 [First], where the application or aspect in respect of which the particular costs order is made before conclusion of the proceedings represents the determination of a separately identifiable matter or may be viewed as the completion of a discrete aspect.
12 A second factor which may incline the court to order that costs be payable forthwith is some unreasonable conduct on the part of the party against whom costs have been ordered...
13 A third factor is, as it was put by Giles J in Doran Constructions Pty Ltd v University of Newcastle (Giles J, 16 December 1994, unreported) at 21, that "there was much to come in these proceedings" and "one can see a fairly long time before the proceedings are disposed of". In Horrobin, the decision of Priestley JA to order that costs be payable forthwith was influenced to some extent by the fact that the controversy between the parties would run for at least a further year. In Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (Federal Court of Australia, Lindgren J, 18 August 1995, unreported), Lindgren J said that it may be appropriate for greater use to be made of the analogous provision in the Federal Court Rules 1979 (Cth), "particularly in cases such as this one where the final determination of the proceedings is so far away".
The plaintiff submits that in the present case the first and third factors are present. I agree that the first factor is present. The costs order that I made relates to a separately identifiable matter or a matter that may be viewed as the completion of a discrete aspect of the litigation. I hope that the third factor is not present because I made directions on 9 June 2011 which were aimed at progressing the proceedings as fast as reasonably practicable towards a hearing.
The defendant submits that it is not in the interests of justice to order that costs be payable forthwith because (a) the defendant is not entirely responsible for the length of time the proceedings have taken; (b) the natural place for this question is before the Registrar towards the end of August 2011 when the plaintiff should have done everything to comply with the directions that I made on 9 June 2011 and the remainder of the proceedings can be fixed for hearing; and (c) this skirmish between the parties is part of a broader dispute and it is not as though the parties are now walking away from each other.
I have taken into account those matters but consider that the first factor identified in Fiduciary is of sufficient strength that I should order that the costs referred to in Order 8 be payable forthwith. However, I propose to stay that order until and including 5 July 2011 in order to make it harmonious with the order staying Order 6 until 30 June 2011. After adding the three business days referred to in Order 6, the defendant does not have to comply with Order 6 until 5 July. The object of the stay in each case is to give the defendant an opportunity to obtain legal advice as to whether to appeal from my main judgment.
ORDERS
The orders of the Court are as follows:
(1) Order 6 made on 9 June 2011 is stayed until and including 30 June 2011.
(2) The costs referred to in Order 8 made on 9 June 2011 be payable forthwith.
(3) Order 2 above is stayed until and including 5 July 2011.
Decision last updated: 28 June 2011
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