Virgtel Ltd v Zabusky (No 2) - [2009] QCA 349

SUPREME COURT OF QUEENSLAND

CITATION:

Virgtel Ltd & Anor v Zabusky & Ors (No 2) [2009] QCA 349

PARTIES:

VIRGTEL LIMITED
(first applicant/first respondent)
VIRGTEL GLOBAL NETWORKS NV
(second applicant/second respondent)
v
HARVEY ZABUSKY
(first respondent/first appellant)
AMALIA ZABUSKY
(second respondent/second appellant)
EREZ ZABUSKY
(third respondent/third appellant)
COMMSLOGIC PTY LTD (IN LIQ)
ACN 109 057 543
(fourth respondent/not a party to the appeal)
SOFTQUEST SOLUTIONS PTY LTD
ACN 057 679 599
(fifth respondent/fourth appellant)
VIRGIN TECHNOLOGIES LIMITED
(sixth respondent/not a party to the application or appeal)

FILE NO/S:

Appeal No 13518 of 2008
SC No 6547 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 November 2009

DELIVERED AT:

Brisbane

HEARING DATE:

6 August 2009

JUDGE:

McMurdo P and Mullins and Philippides JJ
Separate reasons for judgment of each member of the Court,

each concurring as to the order made

ORDER:

Appeal dismissed with costs to be assessed

CATCHWORDS:

PROCEDURE – COSTS – INTERLOCUTORY PROCEEDINGS – the appellants and respondents have been involved in complex litigation for a significant period of time – this litigation has involved a number of interlocutory applications and during these applications the respondents received four costs orders in their favour – the appellant applied to have these costs orders stayed until after the primary proceeding was heard and determined – the trial judge refused the application and held that no special or exceptional circumstances existed to stay the costs orders – whether the trial judge erred – whether special or exceptional circumstances existed – whether the appeal should be allowed

APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – OTHER MATTERS – OTHER CASES – the appellants contend that the trial judge erred in not granting a stay – whether the trial judge erred – whether this Court should set aside the original orders and grant a stay

Uniform Civil Procedure Rules 1999 (Qld), r 740, r 737, r 800

Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685, cited
Croney v Nand [1999] 2 Qd R 342; [1998] QCA 367, cited
Di Carlo v Dubois & Ors [2003] QCA 415, considered
Mareva Compania Naviera SA v International Bulkcarriers SA (The Mareva) [1980] 1 All ER 213, cited
Team Dynamik Racing Pty Ltd v Longhurst Racing Pty Ltd & Ors [2008] QSC 36, considered

COUNSEL:

T Sullivan for the appellant
G C Newton SC, and S Monks, for the respondents

SOLICITORS:

Tucker and Cowen for the appellant
James Conomos Lawyers for the respondent

McMURDO P: The first respondent to this appeal is Virgtel Limited, a company incorporated in the British Virgin Islands, and the second respondent is Virgtel Global Networks NV, a company incorporated in The Netherlands. The Virgtel companies have commenced an action against the first appellant, Harvey Zabusky, and others. They allege that the appellants breached various duties owed to the sixth respondent in the action, Virgin Technologies Limited,[1] by wrongfully diverting…

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.

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Details

Case: [2009] QCA 349
Decision Date: 10 November 2009

CaseChat Overview and Summary

Virgtel Ltd and Zabusky have been engaged in extensive litigation for a substantial duration. This protracted legal battle has included numerous interim applications, during which Zabusky received four orders in their favour pertaining to costs. Virgtel Ltd subsequently applied to have these cost orders suspended until the primary proceedings were concluded, but the trial judge declined the application, concluding that no exceptional circumstances warranted a stay. This decision has led to an appeal by Virgtel Ltd, challenging the trial judge's refusal to grant a stay.

The primary legal issue before the court was whether the trial judge erred in not granting a stay of the cost orders. Virgtel Ltd argued that special or exceptional circumstances existed, justifying a stay of the cost orders until the primary proceeding was finalised. The court was tasked with determining whether the trial judge's decision not to grant a stay was correct and whether the trial judge's assessment of the circumstances was sound. Additionally, the court had to consider whether the appeal should be allowed based on the trial judge's handling of the cost orders.

The court meticulously reviewed the trial judge's decision and the surrounding circumstances. It found that the trial judge had appropriately exercised their discretion in denying the stay. The court held that no exceptional circumstances existed that would justify a departure from the general rule of enforcing costs orders as they become due. Consequently, the court dismissed the appeal, affirming the trial judge's decision. It ruled that the trial judge's assessment was correct and that there were no grounds for the court to interfere with the decision not to stay the cost orders.

The court's final order was to dismiss the appeal and to direct that costs be assessed, indicating that Virgtel Ltd would bear the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs to be assessed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Virgtel Ltd & Anor v Zabusky & Ors (No 2) [2009] QCA 349
PARTIES:	VIRGTEL LIMITED (first applicant/first respondent) VIRGTEL GLOBAL NETWORKS NV (second applicant/second respondent) v HARVEY ZABUSKY (first respondent/first appellant) AMALIA ZABUSKY (second respondent/second appellant) EREZ ZABUSKY (third respondent/third appellant) COMMSLOGIC PTY LTD (IN LIQ) ACN 109 057 543 (fourth respondent/not a party to the appeal) SOFTQUEST SOLUTIONS PTY LTD ACN 057 679 599 (fifth respondent/fourth appellant) VIRGIN TECHNOLOGIES LIMITED (sixth respondent/not a party to the application or appeal)
FILE NO/S:	Appeal No 13518 of 2008 SC No 6547 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	10 November 2009
DELIVERED AT:	Brisbane
HEARING DATE:	6 August 2009
JUDGE:	McMurdo P and Mullins and Philippides JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed with costs to be assessed
CATCHWORDS:	PROCEDURE – COSTS – INTERLOCUTORY PROCEEDINGS – the appellants and respondents have been involved in complex litigation for a significant period of time – this litigation has involved a number of interlocutory applications and during these applications the respondents received four costs orders in their favour – the appellant applied to have these costs orders stayed until after the primary proceeding was heard and determined – the trial judge refused the application and held that no special or exceptional circumstances existed to stay the costs orders – whether the trial judge erred – whether special or exceptional circumstances existed – whether the appeal should be allowed APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – OTHER MATTERS – OTHER CASES – the appellants contend that the trial judge erred in not granting a stay – whether the trial judge erred – whether this Court should set aside the original orders and grant a stay Uniform Civil Procedure Rules 1999 (Qld), r 740, r 737, r 800 Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685, cited Croney v Nand [1999] 2 Qd R 342; [1998] QCA 367, cited Di Carlo v Dubois & Ors [2003] QCA 415, considered Mareva Compania Naviera SA v International Bulkcarriers SA (The Mareva) [1980] 1 All ER 213, cited Team Dynamik Racing Pty Ltd v Longhurst Racing Pty Ltd & Ors [2008] QSC 36, considered
COUNSEL:	T Sullivan for the appellant G C Newton SC, and S Monks, for the respondents
SOLICITORS:	Tucker and Cowen for the appellant James Conomos Lawyers for the respondent