Zabusky v Virgtel Limited

SUPREME COURT OF QUEENSLAND

CITATION:

Zabusky & Ors v Virgtel Limited [2022] QSC 46

PARTIES:

HARVEY ZABUSKY

(first plaintiff)
and
EREZ ZABUSKY
(second plaintiff)
and
D A WERBER LIMITED (RC: 261285)
(third plaintiff)

v

VIRGTEL LIMITED (IBC No 311178)

(defendant)

FILE NO/S:

BS 8849 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

7 April 2022

DELIVERED AT:

Brisbane

HEARING DATE:

14 March 2022

JUDGE:

Bowskill CJ

ORDERS:

The application is dismissed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDER – GENERALLY – where the plaintiffs sought, by the proceeding, to enforce a Nigerian judgment against the defendant – where the proceeding was permanently stayed, in circumstances where the court found the defendant has no assets in Queensland and accordingly Queensland is an inappropriate forum – where, following the making of the stay order, the plaintiffs were ordered to pay the defendant’s costs of the proceeding, and the application for a stay – where the plaintiffs apply for an order lifting the stay on the basis that the defendant now has an asset in the jurisdiction, namely the benefit of the costs order – where the defendant’s legal costs were paid by a third party – whether the costs order is an asset of the defendant such as to justify lifting the stay

Australian Workers’ Union v Bowen (1946) 72 CLR 575

COUNSEL:

D de Jersey QC, for the plaintiffs

S Monks, for the defendant

SOLICITORS:

Hayes & Co Lawyers, for the plaintiffs

James Conomos Lawyers, for the defendant

1. Against the background of a “decades-long, multi-jurisdictional” dispute, by this proceeding the plaintiffs sought to enforce against the defendant a judgment of the Federal High Court of Nigeria.[1]  On 12 February 2021, on the basis of a finding that the defendant does not have any assets in Queensland and, accordingly, that Queensland is an inappropriate forum for the resolution of the dispute, Crow J ordered that the proceeding be permanently stayed.[2]  Subsequently, on 22 February 2021, Crow J made an order that the plaintiffs pay the defendant’s costs of the application (for a permanent stay) and of the proceeding.

   [1]Zabusky & Ors v Virgtel Limited [2021] QSC 17 at [1]-[5].

   [2]Zabusky & Ors v Virgtel Limited [2021] QSC 17 at [13] and [34].

2. There has been no appeal from Crow J’s decision and there is no challenge to the findings made by his Honour.

3. On 21 February 2022, the plaintiffs filed the present application, which seeks an order that the stay be lifted.  The plaintiffs submit that there has been a material change of circumstances[3] since the stay was granted, justifying an order lifting the stay, because:

   (a)first, as a consequence of the making of the costs order in the defendant’s favour, the defendant does now have a substantial asset in Queensland; and

   (b)secondly, in another proceeding subsequent to Crow J’s decision, the plaintiffs…