Land Enviro Corp Pty Ltd v Hickie

Judgment 1THE COURT: Before the Court are (a) a summons seeking leave to appeal from, and (b) a notice of motion seeking to vary, orders made by Harrison J, in the Common Law Division on 29 April 2014. In both cases, what is sought is the setting aside of his Honour's orders and putting in place a further stay pending the outcome of proceedings in the High Court and in the Court of Appeal (of which more will be said below). A notice of appeal has also been filed, presumably on the incorrect basis that leave was not required to appeal from the orders, which, as will be seen below, are plainly interlocutory. 2The procedural history is complex. It is described (in more detail than is necessary for present purposes) in the reasons of the Court below: Hickie v Land Enviro Corp Pty Ltd [2014] NSWSC 472 at [3]-[14], and in the reasons of this Court in Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2014] NSWCA 34. 3For present purposes, it suffices to say that a long trial took place in February and March 2012 before Stevenson J. The applicants, Land Enviro Corp Pty Ltd and Mr Zdrilic, were plaintiffs in that proceeding. They were unsuccessful. They sought, out of time, to appeal. Their application for an extension of time came before Allsop P, who dismissed it: Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2013] NSWCA 35. However, a review of his Honour's decision was partially successful: Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2014] NSWCA 34. That appeal remains pending, undetermined, in this Court. 4However, that extant appeal does not involve the present respondents Mr David Hickie and Vocifa Pty Ltd: see [2014] NSWCA 34 at [6]-[7]. Order 4 of the Court's orders dismissed the application in relation to those parties. Mr Hickie and Vocifa accordingly had the benefit of a final judgment in their favour, delivered on 20 April 2012. By a separate judgment published on 7 May 2012, Stevenson J ordered that Land Enviro Corp and Mr Zdrilic pay the costs of Mr Hickie and Vocifa on an ordinary basis up to 1 September 2011, and on an indemnity basis thereafter. Those costs, which have been quantified (in the amount of $358,588.89), are the subject of the motion which came before Harrison J on 17 April 2014. 5The motion determined by Harrison J focussed on order 4 made by this Court, dismissing the application as against Mr Hickie and Vocifa. It was in the following terms: "1. That a stay of the costs order in the Supreme Court of New South Wales proceedings under the file number 2013/0078308 be extended until 30 days after the High Court of Australia makes a determination in relation to the application for leave to appeal against order 4 of the judgment of the NSW Court of Appeal dated 4 March 2014, or if that application is successful, 30 days after the High Court's determination of the appeal. 2. In the alternative to order 1, that order 4 of the judgment of the NSW Court of Appeal dated 4 March 2014 be stayed until 30 days after the High Court determination of the application for leave to appeal, or if the application is successful, 30 days after the High Court's determination of the appeal against order 4 of the NSW Court of Appeal judgment dated 4 March 2014." 6By a reserved judgment, Harrison J dismissed the notice of motion: Hickie v Land Enviro Corp Pty Ltd [2014] NSWSC 472. As noted above, both the summons for leave, and the notice of motion, seek to set aside the orders made by his Honour and put in place (in each case) the following regime: "(a) That a stay of the costs order in the Supreme Court of New South Wales proceedings under file number 2013/00078308 be extended until 30 days after the High Court of Australia makes a determination in relation to the application for leave to appeal against order 4 of the judgment of the NSW Court of Appeal dated 4 March 2014, or it that application is successful, 30 days after the High Court's determination of the appeal. (b) In the alternative to Order 3(a), that order 4 of the judgment of the NSW Court of Appeal dated 4 March 2014 be stayed until 30 days after the High Court determination of the application for leave to appeal, or if the application is successful 30 days after the High Court's determination of the appeal against order 4 of the judgment of the NSW Court of Appeal dated 4 March 2014. (c) In the alternative (and preferably) to order 3(a) and (b), that the stay be put in place until 30 days after the decision of the full Court of Appeal in proceedings against the HTT respondents." (d) That the respondents return the amount of $15,000 to the Court, as per order 2 of the judgment, and that the amount then be repaid to the appellants if the appellants are successful in persuading the High Court that order 4 of the judgment of the NSW Court of Appeal dated 4 March 2014 was made in error. 7It will be seen that the entirety of the relief sought from the primary judge was confined to a limited stay pending the determination of the application for special leave to appeal which had been brought by Land Enviro Corp Pty Ltd and Mr Zdrilic. They had, at the time the motion was heard and determined, applied for special leave to appeal against the dismissal of their application for an extension of time as against Mr Hickie and Vocifa. 8That is no longer the position. The application for special leave to appeal came before the High Court of Australia, constituted by Bell and Gageler JJ, who dismissed it on 15 August 2014. The High Court stated that "there is no basis for doubting the correctness of the decision of the Court of Appeal": Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd & Ors [2014] HCASL 146 at [5]. 9It follows immediately that the entirety of the relief as formulated before the primary judge is now moot. That is to say, the stay that was sought pending the determination of the application for special leave to appeal from the decision of this Court in March 2014 no longer has any utility, the application for special leave having been refused. That by itself is a sufficient, and indeed compelling, reason not to grant leave to appeal. 10It also follows that all of the paragraphs, save one, in both the summons for leave and the notice of motion presently before the Court are moot. The exception is paragraph (c) which seeks a stay of the order that Land Enviro Corp and Mr Zdrilic pay Mr Hickie and Vocifa until 30 days after the decision of the Court of Appeal in the proceedings against the 1st, 2nd, 4th and 5th respondents. No such application was made to the primary judge. In any event, there is no basis for a stay of orders obtained by successful defendants, whose success has now been confirmed by decisions of the Court of Appeal and the High Court of Australia, even though litigation continues as between the remaining parties to the proceedings. 11Mr Zdrilic relied upon the decision of Brereton J In the matter of Amy Holdings Pty Ltd; In the matter of Land Enviro Corp Pty Ltd [2014] NSWSC 1176 for the contention that he had an arguable claim against the Hickie respondents and in particular he relied upon what his Honour has said in [29] of that decision. However the final sentences of [29] and [31] are squarely to the contrary. Those sentences refer to the refusal of the application for special leave and say: "Whatever might have been the position until then, there is now no basis for contending that the pendency of the special leave application provides 'some other reason' for setting aside the demand. ... However, the special leave application having now failed, I cannot see how that application, even if until then it had some prospect of success, could now have any." 12Land Enviro Corp and Mr Zdrilic also say that "the applicants cannot pay the costs order until the conclusion of the appeal against the HTT respondents because they are impecunious" (written submissions, para 34). They say, correctly, that part of the appeal is yet to be fully determined. They assert that they have an arguable case to succeed against the HTT respondents, and that if they do so, the recovery of costs and damages will be more than sufficient to pay the outstanding costs order. They say that there is no prejudice to Mr Hickie and Vocifa in waiting for the conclusion of those proceedings, and that Mr Hickie and Vocifa are parties which are interconnected with other parties "in such a way that the only just thing to do is to allow the proceedings against the HTT respondents to be concluded". 13Even accepting all the factual matters to which Mr Zdrilic refers, there is no sound basis for staying what amounts to an undisputed order in favour of Mr Hickie and Vocifa that Land Enviro Corp and Mr Zdrilic pay the costs incurred by them in lengthy proceedings commenced by Land Enviro Corp and Mr Zdrilic in 2007 and determined in 2012. That order has now been confirmed by this Court and the High Court. It is not capable of any other challenge. It follows that the application for leave to appeal and the motion seeking to vary the orders made by the primary judge, are doomed to fail. 14The orders of the Court are: