Plaintiffs v Defendants

JUDGMENTS, ORDERS AND DECLARATIONS - Sheriff sought declarations that Sheriff's reasonable costs in this proceeding are costs incurred in executing a warrant under Sheriff Act 2009 s 32(1) - Giurina v Sheriff (Vic); Hooks Industries (Vic) Pty Ltd v Giurina (Costs) [2025] VSC 155 applied.

For Greater Geelong City Council (interested party)

1. Judgment was handed down in this proceeding on 18 November 2024: Deak v Estate of the Late Carolina Nacinovich and Ermanno Giurina.[1] I will continue to use capitalised terms as defined in that judgment. The judgment addresses, amongst other things, the enforcement of Costs Orders[2] made in favour of the plaintiffs against the second defendant, and declarations and orders as to the manner in which the Warrant[3] issued in respect of the Costs Orders is to be executed over proceeds of sale of the Property.[4]
2. On 5 December 2024, a hearing was listed for the purpose of making final orders and declarations reflecting the judgment and to hear the parties on the question of costs. At that hearing, the Court was informed that the Warrant was stale, and that the plaintiffs sought additional time to seek leave for a fresh warrant to be issued in its place, and thereafter make an application for the fresh warrant to be adduced as evidence in this proceeding. The Court was also informed that the Sheriff and two entities involved in other proceedings with Mr Giurina who have been awarded costs wished to be heard on the form of order arising from the judgment, being the Council[5] and Hooks Industries (Vic) Pty Ltd. Hooks was the purchaser of the Property pursuant to a sale conducted by the Sheriff. Hooks is a party to S ECI 2024 04767, which is a proceeding by which Mr Giurina challenged the sale of the Property by the Sheriff.
3. At that hearing, the Court made the following orders:

(a) an order dismissing the proceeding insofar as it was brought by the third plaintiff, and to the extent necessary, granting leave to the first and second plaintiffs pursuant to r 9.03 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('Rules') to continue without the third plaintiff as a party. This order reflects Part C of the judgment;

(b) an order that the second defendant pay the plaintiffs' costs of and incidental to the proceeding, including any reserved costs, fixed in the sum of $53,000, together with the costs ordered in S CI 2018 00168 and S ECI 2018 02290 fixed in the sum of $13,927. The Court gave ex tempore reasons for its decision on costs; and

(c) timetabling orders which provided for: (a) the plaintiffs to file and serve any application for leave to adduce further evidence; (b) circulation of proposed final orders to the defendants, the Sheriff, Hooks and the Council; and (c) for non-parties to file and serve any application for leave to be heard on the form of final orders. This timetable was subsequently extended by orders made on 14 January 2025 and 19 February 2025.

1. On 24 January 2025, Lorenz JR granted leave pursuant to r 68.02 of the Rules to the plaintiffs to enforce the Costs Orders and issue a fresh warrant. Lorenz JR also ordered that the costs of the hearing on 22 January 2025 of $1,650 be costs in the warrant. Thereafter, a warrant of seizure and sale dated 19 February 2025 was issued on 20 February 2025 in S CI 2018 00168 in respect of the Costs Orders. I will refer to this warrant as the 'New Warrant'.
2. The following is a list of issues addressed in this decision together with a summary of the outcome of each issue in italicised font:

(a) Should the Court grant the plaintiffs leave to reopen their case and adduce the New Warrant into evidence? Yes. If yes, should orders be made in this proceeding with respect to the New Warrant in place of the Warrant the subject of the judgment? Yes. These questions are addressed in Part B below.

(b) What form of order should be made in respect of the judgment? Orders will be made in the form proposed by the plaintiffs during the hearing on 31 March 2025, with which the Sheriff, the Council and Hooks agree. This is addressed in Part C.1 below.

(c) Should the Court declare that the Sheriff's costs are costs in executing a warrant within the meaning of s 32(1) of the Sheriff Act 2009 (Vic) ('Sheriff Act'), and if so, in what amount should they be fixed? Yes, it is appropriate to make the declaration sought and for the Sheriff's costs to be fixed in the amount of $15,000. This is addressed in Part C.2 below.

(d) Should the Court grant a stay of execution of the costs orders made in this proceeding on 5 December 2024 until final determination of Mr Giurina's appeal of Lorenz JR's order and his foreshadowed appeal of orders made by Gray J on 18 November 2024 in S ECI 2024 00204 and S ECI 2024 04767? No. This is addressed in Part C.3 below.

1. The Court has read the affidavits of Julia Eleonora Racheha filed by the plaintiffs on 5 March 2025 and 17 March 2025, the affidavit of Anthony Michael Sergi filed by the Sheriff on 27 March 2025, the affidavit of Matthew Eames filed by the Sheriff on 27 March 2025, the Sheriff's submissions filed on 2 April 2025, the plaintiffs' proposed form of order, Mr Giurina's submissions filed on 28 March 2025 and 2 April 2025, and Mr Giurina's proposed form of order attached thereto.

B Should the Court grant the plaintiffs leave to reopen and adduce the New Warrant into evidence and make orders in respect of it?

1. By Summons filed on 5 March 2025, the plaintiffs seek leave to reopen and adduce the New Warrant into evidence. Ms Racheha's affidavit in support explains that the Warrant referred to in paragraph 1 of the judgment expired and was not extended by reason of an oversight on the part of the plaintiffs' solicitors. It also gives evidence of the application before Lorenz JR to issue a fresh warrant and exhibits the New Warrant.
2. The form of final order proposed by the plaintiffs is drafted in respect of the New Warrant. The plaintiffs are asking the Court to reconsider its judgment in light of the New Warrant, and find that the issues determined in the judgment apply to the New Warrant, such that it is appropriate for the final order to refer to the New Warrant instead of the old.

1. As the Court of Appeal said in Spotlight Pty Ltd v NCON Australia Ltd ('Spotlight'),[6] leave to reopen to adduce fresh evidence will be granted when the court is satisfied that it is, on the whole, in the interests of justice to do so.[7] The Court of Appeal describes this as the 'overriding principle' and has identified that there are at least four categories in which leave will be considered.[8] These are (i) where fresh evidence, unavailable or not reasonably discoverable before, becomes known and available; (ii) where there has been inadvertent error; (iii) where there has been a mistaken apprehension of the facts; and (iv) where there has been a mistaken apprehension of the law.[9] The Court of Appeal emphasises that the circumstances in which the court may allow a case to be reopened must be exceptional, having regard to the public interest in finality of litigation,[10] and the need to protect the boundaries of the reopened issues.[11]
2. Spotlight addresses an application after the conclusion of trial, but before judgment had been delivered. The test to be applied on the question of the Court's jurisdiction to reconsider issues determined in a judgment after it has been delivered, but before final orders have been made, is materially the same. In Autodesk Inc v Dyason (No 2) ('Autodesk'),[12] the High Court affirmed the jurisdiction to recall a judgment it has pronounced prior to formal entry of the judgment, if a person against whom judgment has been pronounced, through no fault of their own, has not had an opportunity to be heard.[13] The High Court emphasised that the jurisdiction must be exercised cautiously and sparingly, having regard to the public interest in the finality of litigation.[14] The jurisdiction must not be used as a backdoor method by which unsuccessful litigants can seek to re-agitate arguments already considered by the Court or because unsuccessful litigants have failed to present the argument as well as they might have.[15]
3. In doing so, Mason CJ and Gaudron J expressly acknowledged that the jurisdiction to reopen a judgment before the entry of formal orders is generally exercised where there has been a denial of natural justice, but that it is not limited to such situations.[16] The public interest in finality of litigation will not exclude the Court from exercising this exceptional jurisdiction of reviewing or rehearing an issue if its earlier judgment has proceeded on a misapprehension as to the facts or law.[17] Gaudron J said that the touchstone is whether the interests of justice require the judgment to be vacated.[18] Mason CJ said 'in order to enliven the exercise of the jurisdiction ... this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing'.[19]
4. The need to focus upon the interests of justice is also identified in a House of Lords decision relied upon by Mr Giurina: Mulholland v Mitchell.[20] In the context of an application to admit fresh evidence on appeal, Lord Wilberforce said 'it may be expected that courts will allow fresh evidence when to refuse it would affront common sense, or a sense of justice'.[21]
5. Mr Giurina also drew the Court's attention to Bucic v Arnej Pty Ltd (No 4) ('Bucic').[22] Bucic concerned an application to reopen proceedings after an order disposing of the proceeding had been perfected. Zammit J said that 'it is extremely rare for a court to vary or set aside its own order, save for where there has been fraud, a breach of natural justice, a mistaken apprehension of law or fact or material error in the approach of the judge. The overriding reason for the rule is the importance of the principle of the finality of litigation for the parties and, indeed, all society'.[23] However, in the present circumstances, orders have not yet been made disposing of the proceeding. This may be a distinction without a difference, having regard to the approach set out by Mason CJ and Gaudron J in Autodesk, which stated the test in similar terms, albeit in respect of an application to reopen prior to the entry of final orders.

1. The plaintiffs submit that on the whole, the interests of justice favour allowing the plaintiffs to reopen their case and adduce the New Warrant into evidence, and for final orders to be made in respect of the New Warrant in lieu of the now-expired Warrant referred to in the judgment.
2. The plaintiffs submit that this case falls into either category (i) or (ii) of Spotlight, in that the fresh evidence of the New Warrant was unavailable at the time of the trial, and there has been inadvertent error on the part of the plaintiffs' solicitors which has given rise to this application. The plaintiffs point to a range of factors which they submit weigh in their favour, given the error by the plaintiffs' solicitors (rather than the plaintiffs themselves) and the inability to seek an extension of the validity of the Warrant under r 68.05(2) after it has already expired. On the question of competing prejudices, the plaintiffs submit that they will suffer great prejudice if the New Warrant is not admitted into evidence and if the final orders are not made in respect of it in place of the expired Warrant. This is because they will not have the benefit of the judgment handed down in their favour. They submit that by way of contrast, Mr Giurina will suffer no prejudice if the Court makes the orders sought by the plaintiffs.
3. The interests of justice favour allowing the plaintiffs to reopen their case and adduce the New Warrant into evidence, and for final orders to be made in this proceeding as contemplated by the judgment, save with replacing references to the expired Warrant with the New Warrant. I accept the plaintiffs' submissions that there are a range of factors which demonstrate that this is where the interests of justice lie.
4. The Warrant expired on 31 October 2024 by reason of an oversight on the part of the plaintiffs' solicitors. Ms Racheha, the plaintiffs' solicitor, is forthcoming in her affidavit as to why this occurred. She says that having regard to the reserved judgment, the Property having been sold, and the various pieces of satellite litigation that arose from its sale, the need to make an application to extend the period of the validity of the Warrant under r 68.05(2) of the Rules had slipped her mind.[24] By the time the plaintiffs' solicitors realised the need to extend the validity of the Warrant, it had already expired.[25]
5. Rule 68.05(3) provides that the Court shall not make an order extending the validity of a warrant after the day of its expiry. Accordingly, it was not possible for the plaintiffs to obtain an order extending the validity of the Warrant, and their only option was to apply to the Court for leave to issue a fresh warrant in its place in respect of the Costs Orders. I accept that there has been no delay on the plaintiffs' part once the expiry came to the attention of the plaintiffs' solicitors, and Mr Giurina did not suggest that there has been any delay.
6. Mr Giurina disputes that categories (i) and (ii) set out in Spotlight apply to the plaintiffs' application on the basis that he disputes that the fresh evidence was not available or reasonably discoverable or that there has been an inadvertent error. Rather, Mr Giurina submits that the plaintiffs' application has resulted from a lack of due diligence or negligence on the part of the plaintiffs' solicitors, such that the Court should not exercise its discretion to allow the plaintiffs to reopen. In this regard, Mr Giurina relies upon Nicholson v Hilldove Pty Ltd & Ors ('Nicholson'),[26] and the reference therein to it being necessary for the applicant to show that there was no lack of reasonable diligence on their part.[27] He also relies upon Paolacci v Capital Finance Australia Limited ('Paolacci'),[28] where the Court refused to allow fresh evidence on the basis that there had been a failure to act with reasonable diligence.
7. Mr Giurina submits that final orders should not be made in the form sought by the plaintiffs, because the orders are not in respect of the Warrant the subject of the judgment. He submits that the plaintiffs have not demonstrated that the Court has jurisdiction to reopen the judgment or that fresh evidence should be adduced for discretionary reasons, because the application is made as a consequence of the plaintiffs' solicitors' lack of due diligence. In this regard, Mr Giurina relies upon Autodesk and Bucic. In Autodesk, Mr Giurina relies in particular upon the quote in Dawson J's judgment from Wentworth v Woollahra Municipal Council (No 2) as to the need to exercise the jurisdiction with great caution, such that generally speaking it will only be exercised where there has been a denial of natural justice through no fault of the applicant.[29] However, this ignores the judgments of Mason CJ and Gaudron J which conclude that the jurisdiction to reopen extends beyond cases where natural justice has been denied.[30]
8. I accept that the plaintiffs find themselves in this position because of their solicitors' error in failing to apply to extend the validity of the Warrant before it expired. That error might aptly be described as a lack of due diligence or neglect on the part of the solicitors, which resulted in the Warrant expiring. However, this is not the end of the enquiry, as the question before the Court is whether, in these circumstances, the interests of justice on the whole favour the plaintiffs' application.[31]
9. Each of Nicholson and Paolacci, and Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 28) are Spotlight category (i) cases. This is because the fresh evidence existed at the time of the hearing of the proceedings, but it had not been discovered until after judgment had been entered. In this context, Nicholson and Paolacci focus on the question of whether, by the exercise of reasonable diligence, the fresh evidence could have been discovered earlier and tendered at trial.[32] The relevance of the applicant demonstrating reasonable diligence to the remaining three Spotlight categories, or cases which do not fall into any of the Spotlight categories, is not as clear.
10. Contrary to Mr Giurina's submission, this is not a situation where due diligence would have seen the relevant evidence adduced at trial. Here, the New Warrant did not exist at the time of the trial. The lack of diligence relates to a failure which occurred after the plaintiffs' case had closed, being the failure to ensure that the Warrant did not expire. Accordingly, I do not consider this to be a Spotlight category (i) case. In the circumstances of this case, the error, or lack of reasonable diligence on the part of the plaintiffs' solicitors, is an important factor which weighs against the plaintiffs, but it alone does not answer the question as to where, on the whole, the interests of justice lie.
11. I do not accept that the Court does not have jurisdiction to reconsider the judgment in light of the New Warrant, applying the test set out in Autodesk. In my view, these are exceptional circumstances which justify the Court exercising its jurisdiction to review or rehear an issue determined in an earlier judgment.
12. Insofar as the judgment concerns the Warrant and the manner in which it may be executed, the judgment is in the plaintiffs' favour. As set out in Parts F and H of the judgment, I determined to grant the relief sought by the plaintiffs, including declarations that the proceeds of sale of the Property are the property of Mr Giurina and are affected by the Costs Orders and the Warrant, and a direction to the Sheriff to execute the Warrant as against the proceeds.
13. Judgment was delivered on the basis that the Warrant was valid for execution. At the trial, the Warrant was valid. However, the Warrant expired 18 days before the judgment was handed down. Thus, the judgment was handed down on the mistaken premise that the Warrant remained valid for execution. This is a misapprehension as to a critical fact relevant to the means by which the Costs Orders may be enforced. In my view, this case is more akin to Spotlight category (iii).
14. If the plaintiffs are not granted leave to reopen, and orders arising from the judgment are not made in respect of the New Warrant in place of the old, the judgment will be rendered nugatory. This is because it would not be appropriate to make the orders foreshadowed in the judgment in respect of the Warrant, as it is no longer valid for execution. I accept that this will give rise to great prejudice to the plaintiffs, as they will not be in a position to enjoy the fruits of the judgment by reason of the failure of their solicitors to extend the validity of the Warrant. If that occurred, the plaintiffs may be left with a potential claim against their solicitors, leading to further litigation, costs and delay.
15. Accordingly, this is not a case where unsuccessful litigants are seeking to re-agitate arguments in the hope of convincing the Court that they are correct. Rather, in this case, the successful litigants are seeking to ensure that the judgment is able to be carried into effect in light of the new state of affairs occasioned by the New Warrant.
16. The reason for the Court misapprehending the validity of the Warrant is not the plaintiffs' fault. Rather, it is the fault of their solicitors. Of course, the solicitors are the plaintiffs' agents, however, in these circumstances, where the focus is upon the interests of justice, in my view it is necessary to draw a distinction between the conduct of the plaintiffs as distinct from their solicitors. Accordingly, I am of the view that these circumstances fall within the parameters described by Mason CJ in Autodesk, in that the judgment has proceeded on a misapprehension of the facts which cannot be attributed solely to the neglect or default of the plaintiffs, as distinct from their solicitors.
17. The plaintiffs submit that Mr Giurina will not suffer any prejudice if the Court grants the relief they seek because admission of the New Warrant in place of the old will not require any further evidence to be led or any further cross-examination. Mr Giurina did not suggest otherwise.
18. Mr Giurina did not submit that he would suffer any prejudice if the Court were to grant the application. Of course, if the plaintiffs' application is refused, Mr Giurina will be able to take advantage of the solicitors' failures, with the consequence being that the plaintiffs will not be in a position to execute the Costs Orders over the proceeds of sale of the Property. The effect of this is that Mr Giurina will continue to be able to evade payment of the Costs Orders, in the manner that he has done for many years.[33] It will turn what was a win for the plaintiffs into a win for Mr Giurina. Mr Giurina says that this is the appropriate course in the proper administration of justice because it is the plaintiffs' fault that the Warrant expired, and therefore they should bear the consequences. In my view, the interests of justice do not warrant punishing the plaintiffs for their solicitors' conduct, and nor do the interests of justice lie in favour of Mr Giurina avoiding the consequences of the judgment.
19. For these reasons, I accept that Mr Giurina will not suffer any relevant prejudice should the Court grant the plaintiffs' application.
20. Mr Giurina says that if the Court were to make orders concerning the New Warrant in place of the old, it would offend s 3(5) of the Supreme Court Act 1986 (Vic) ('Supreme Court Act') which provides that judgments of the Supreme Court may only be enforced in accordance with Chapter 1 of the Rules and not otherwise.[34] Mr Giurina says that this is because the plaintiffs are seeking to enforce the judgment by means other than that which is provided for in Chapter 1 of the Rules. I do not accept this submission because it mischaracterises the plaintiffs' application. Final orders have not yet been made in this proceeding, accordingly, the plaintiffs are not seeking to enforce the judgment by means other than that which are provided for in Chapter 1 of the Rules. Rather, the plaintiffs seek to adduce fresh evidence to correct the misapprehension of fact on which the judgment proceeded, namely that the Warrant was valid for execution, and for final orders to be made in relation to the enforcement of the Costs Orders via the New Warrant, which is valid.
21. Mr Giurina says that it would not be appropriate to make orders in respect of the New Warrant in place of the old because the New Warrant is not valid and enforceable. Mr Giurina submits that the New Warrant is not valid and enforceable simply because it has been issued by the Prothonotary. He submits that this is because the Prothonotary is not a judicial officer who has determined the legality and enforceability of the New Warrant. He submits that the New Warrant is not valid because the accrued interest noted on its face has been calculated contrary to s 5(7) of the Limitation of Actions Act 1958 (Vic).
22. Mr Giurina made his submission that the New Warrant is not presently valid and enforceable without the benefit of authority. I do not accept that the New Warrant is not presently valid for execution. This is because the Rules provide that a warrant is issued when it is sealed with the seal of the Court,[35] and that it is valid for the purpose of execution for one year after the day it is issued.[36] As the Court of Appeal stated in Ermanno Giurina v Sheriff for the State of Victoria:

The issue of the warrants by the Court is sufficient authority for the Sheriff to execute them. Indeed, the Sheriff has a statutory duty to execute warrants that have been issued. That duty can, of course, be affected by the grant of an interlocutory injunction, which may occur if an affected person has demonstrated that there is a serious question to be tried. But where such an injunction is not granted, the fact that the affected person makes an assertion about the operation of the warrants that has not to date been the subject of judicial decision does not prevent the Sheriff from executing the warrant.[37]

1. Unless and until it is set aside or varied, a warrant remains valid for execution for the period set out in r 68.05. Mr Giurina's submission amounts to a suggestion that no warrant is valid for execution unless and until an application has been made through which a judicial officer has determined that it is valid. Such an approach is contrary to the Rules and the above decision of the Court of Appeal, and would render the Sheriff impotent.
2. Mr Giurina submits that his appeal of the order made by Lorenz JR granting the plaintiffs leave to issue the New Warrant demonstrates that the validity of the New Warrant is in doubt. He also submits that given his appeal, no orders should be made in respect of the New Warrant, as the orders are liable to be set aside if his appeal is successful. As I have said, the New Warrant remains valid for enforcement unless and until it is set aside or expires. Lorenz JR's order also remains valid and enforceable until such time as it is set aside. In the event of a successful appeal, Mr Giurina may make such application as he sees fit to address that eventuality. It does not provide a reason to not allow the evidence to be adduced, and for final orders in this proceeding to be made in respect of the New Warrant.
3. In my view, this case does present exceptional circumstances that warrant final orders being made in this proceeding in relation to the New Warrant in place of the old. The judgment concerns the means of enforcement of the Costs Orders, and in doing so, references the old Warrant, as this was the execution process relied upon by the plaintiffs at the time of the trial and delivery of the judgment. The New Warrant replaces the old and has been issued in respect of the same Costs Orders. Save for the accrual of interest by reason of the effluxion of time, and inclusion of costs as ordered by Lorenz JR, the New Warrant is identical in form to the old Warrant. Given that final orders have not yet been entered, the limited nature of the fresh evidence, and the lack of prejudice to Mr Giurina as compared to the great prejudice the plaintiffs will suffer, in my view, a failure to grant the orders sought by the plaintiffs would affront common sense or a sense of justice, despite the public interest in finality of litigation.
4. For these reasons, I will allow the plaintiffs to reopen and adduce the New Warrant into evidence, and I will make the final orders in this proceeding arising from the judgment on the basis that the New Warrant replaces the old Warrant the subject of the judgment. I will make orders in the form proposed by the plaintiffs in respect of the plaintiffs' summons filed on 5 March 2025, being an order granting leave to adduce the New Warrant into evidence in this proceeding, and otherwise dismissing the plaintiffs' summons. The parties agree that the parties should each bear their own costs of the hearing on 31 March 2025, at which the plaintiffs' summons was heard. No party sought any further or other order in respect of the plaintiffs' summons. I address this agreement in paragraph 45 below. In light of these matters, I will not make a separate order as to costs with respect to the plaintiffs' summons.

1. The plaintiffs have prepared a draft form of order arising from the judgment. The proposed order has been prepared on the basis that the Court will grant leave to adduce the New Warrant into evidence, and will make final orders in respect of it.
2. Paragraphs 1, 3 and 5 to 8 of the plaintiffs' proposed order address the judgment and the costs of the hearing on 31 March 2025. As I will explain in more detail below, the Sheriff, the Council and Hooks agree on the plaintiffs' proposed order. I have outlined Mr Giurina's opposition to the form of order above in Part B. Other than his arguments regarding the jurisdiction of the Court to make orders in respect of the New Warrant in place of the old, and the impact of his challenge to the New Warrant, Mr Giurina did not make any submissions as to the form of order proposed by the plaintiffs insofar as it relates to the judgment. I address the form of order arising from the judgment in Part C.1 below.
3. Paragraphs 2 and 4 of the plaintiffs' proposed order concern the Sheriff's costs, which are opposed to by Mr Giurina. I address the Sheriff's costs in Part C.2 below.
4. Mr Giurina seeks a stay of execution of the costs orders made in this proceeding on 5 December 2024. I address this in Part C.3 below.

1. Paragraphs 1 and 3 of the plaintiffs' proposed order seek to reflect the judgment, and I am satisfied that they do, and will make an order in those terms.

(a) Paragraph 1 provides for a declaration to reflect paragraph 215 of the judgment, namely that the proceeds of sale of the Property is the property of Mr Giurina and affected by the Costs Orders and the New Warrant, subject to the application of the Sheriff Act and the execution of any warrants issued in respect of debts owed by the executor of the Estate (in his capacity as executor of the Estate), save that the declaration sought is limited to the sum set out in the New Warrant, being $67,632.84, rather than the entire proceeds.

(b) Paragraph 3 provides an order to reflect paragraph 217 of the judgment which directs the Sheriff to execute the New Warrant as against the proceeds of sale of the Property, subject to the application of the Sheriff Act and there being sufficient funds after the execution of any warrants or other enforcement process directed to the Sheriff in respect of debts owed by the executor of the Estate (in his capacity as executor of the Estate) and the Sheriff's costs.

1. Paragraph 5 provides that the parties are to bear their own costs in relation to the hearing on 31 March 2025. This order is consented to by the Council, Hooks, the Sheriff and Mr Giurina.[38] Therefore, I will make this order.
2. Paragraphs 6, 7, and 8 seek to preserve the position of the Council and Hooks. Paragraph 7 provides for a stay of execution of the payment by the Sheriff to the plaintiffs for a period of 180 days. Paragraph 8 provides for a limited liberty to apply to extend that stay by any person who can demonstrate a sufficient interest on five business days' notice to the parties and the Sheriff. Paragraph 6 provides for a copy of the orders to be served on the Sheriff, the Council and Hooks. Paragraph 9 provides that subject to paragraph 8, the proceeding is dismissed.
3. As referred to at the hearing on 5 December 2024, the Council and Hooks indicated their wish to be heard as interested parties in respect of the form of final order. They did so because they may have prospective or contingent debts in the form of costs orders against Mr Giurina in his capacity as executor of the Estate. However, as at the time of the hearing on 31 March 2025, the proceedings as between Mr Giurina and the Council and those as between Mr Giurina and Hooks were not yet finalised and the Court's judgments were reserved. It is for these reasons that the plaintiffs, the Council and Hooks seek a stay of the payments to the plaintiffs pursuant to these orders until such time as those proceedings have been finalised and any costs orders against Mr Giurina have been made.
4. I am satisfied this is an appropriate basis for making paragraphs 6, 7, 8 and 9 of the plaintiffs' proposed form of order, which are consented to by the affected parties (or at least, potentially affected parties). Mr Giurina did not oppose the orders (other than in the manner that I have already described and addressed in Part B). On one view, the stay is not required. This is because the declaration and orders provided for in paragraphs 1 and 3 of the plaintiffs' proposed order provide for payments to be made to the plaintiffs subject to the execution of any warrants directed to the Sheriff in respect of debts owed by the executor of the Estate (in his capacity as executor of the Estate). However, I can see sense in granting the stay so that any unforeseen consequences that arise from judgments of this Court that are presently reserved may be addressed in an orderly manner.

1. Paragraph 2 of the plaintiffs' proposed order is a declaration that the costs incurred by the Sheriff by reason of her participation and appearances in this proceeding are costs that the Sheriff has incurred in executing a warrant within the meaning of s 32(1) of the Sheriff Act. The Sheriff seeks that the costs be fixed in the sum of $15,000, as provided for in paragraph 4 of the plaintiffs' proposed order. Mr Giurina opposes the declaratory relief sought, and also opposes any costs order in favour of the Sheriff.

1. The availability of declaratory relief in respect of the Sheriff's costs was argued by the Sheriff and Mr Giurina before Gray J in S ECI 2024 00204 and S ECI 2024 04767. In this proceeding, Mr Giurina relies upon the same submissions that he made before Gray J.[39]
2. At the time of the hearing in this proceeding on 31 March 2025, Gray J's judgment was reserved, but the parties had been notified that it would be handed down later that day. Accordingly, on 31 March 2025, I gave leave to the parties to provide written submissions concerning the basis on which the Sheriff seeks orders as to costs, so that those submissions may have regard to Gray J's judgment once it had been handed down. The Sheriff and Mr Giurina each filed submissions on 2 April 2025.
3. Before Gray J, Mr Giurina disputed that s 32(1) of the Sheriff Act can encompass the Sheriff's legal costs of appearing and participating in a proceeding. He submitted that s 32(1) is limited to the costs incurred by the Sheriff in the physical or operational act of execution of a warrant.
4. In his Honour's judgment delivered on 31 March 2025, Giurina v Sheriff (Vic); Hooks Industries (Vic) Pty Ltd v Giurina (Costs)[40], Gray J rejected Mr Giurina's construction of s 32(1), finding:

In my view, there is no reason in principle why the Sheriff's costs involved in successfully resisting litigation to prevent execution of a warrant should be viewed any differently from the costs the Sheriff might incur in seeking an order in execution of a warrant. In both scenarios the Sheriff incurs those costs in execution of the warrant.

...

There are many other actions the Sheriff may have to take in order to fulfil her duty under s 13 of the Sheriff Act to 'execute and return' a warrant directed to her. These can include the acts of sale of property under s 24 of the Sheriff Act, and (where there has been a sale) facilitating the purchaser's acquisition of the property contemplated by both ss 24 and 25. On my reading of the Sheriff Act as a whole, and the text of s 32 in particular, the Sheriff's reasonable costs of and incidental to failed litigation brought by a person to prevent execution of a warrant, including to prevent sale under a warrant or transfer of title upon such sale, are costs that are recoverable under s 32.[41]

1. In the proceedings before Gray J, Mr Giurina sought injunctive relief that would have prevented the Sheriff from selling the Property and, after sale, would have prevented the Sheriff from facilitating transfer of the title to the purchaser. Gray J found, as a matter of fact, the Sheriff's resistance to the orders sought were steps taken in execution of the warrant.[42] His Honour granted the declaration sought by the Sheriff.
2. With the question of whether legal costs can be costs under s 32(1) now determined, the parties agree that, taking the approach adopted by Gray J, the question for the Court is whether, as a matter of fact, the Sheriff's legal costs in this proceeding are costs incurred in the execution of the relevant warrant within the meaning of s 32(1) of the Sheriff Act.
3. Mr Giurina submits that the Sheriff's costs in this proceeding were not costs incurred in the execution of the Warrant, because she has appeared and participated to assist the Court, and was under no compulsion to do so. Mr Giurina distinguishes this from the position of the Sheriff in the proceedings before Gray J, where the Sheriff was a party to the proceeding and took an active role. Mr Giurina submits that the Sheriff is an officer of the Court and should not seek or be awarded her costs in circumstances where she has appeared only to assist the Court and not as a party. Mr Giurina also submits that the criteria for making a non-party costs order as provided for in Knight v FP Special Assets Ltd ('Knight')[43] and s 24 of the Supreme Court Act have not been satisfied. In this regard, Mr Giurina submits that the non-party costs orders are only made where the non-party is the effective litigant standing behind the party, or where there has been a contempt or an abuse of process of the Court.
4. I accept that the Sheriff's costs incurred in participating in this proceeding are costs in execution of the Warrant and the New Warrant. The Sheriff's participation in this proceeding arose because the relief sought by the plaintiffs relates to the manner in which the Sheriff may execute the Warrant. She briefly appeared at trial and in the two subsequent hearings to make submissions on the form of order, the validity of the Warrant and her ability to execute it as contemplated by the judgment. These are all appropriate steps taken by the Sheriff in this proceeding which are all in execution of the Costs Orders via the Warrant and then the New Warrant. They were not, for example, submissions made as an amicus curiae to assist the Court, rather they were submissions which were squarely aimed at the manner in which the Sheriff could execute the Warrant, and now the New Warrant.
5. I do not accept Mr Giurina's submissions that the fact that the Sheriff is an officer of the Court, or that she appeared voluntarily detracts from whether or not these steps were in execution of a warrant. The question for the Court is whether the costs were incurred in the execution of a warrant. In answering this question it is irrelevant whether or not the Sheriff is a party to the proceeding, provided that the costs were in execution of the warrant. The role of the Sheriff as an officer of the Court is irrelevant for the same reason. Mr Giurina's reliance upon s 24 of the Supreme Court Act and Knight is similarly misplaced. The question before the Court is not whether it should make a non-party costs order, but rather, whether the legal costs incurred by the Sheriff in this proceeding are costs in execution of a warrant under s 32(1) of the Sheriff Act.
6. For the reasons that I have stated, I am satisfied that the legal costs incurred by the Sheriff in this proceeding are costs in execution of a warrant under the Sheriff Act. Given the controversy between the parties, it is appropriate to grant the declaration sought by the Sheriff to quell that controversy.

C.2.2 Should the Sheriff's costs be fixed?

1. In support of her application for costs to be fixed in the sum of $15,000, the Sheriff relies upon Mr Sergi's affidavit which states that the Sheriff's costs of this proceeding total $48,012.25.[44] Mr Giurina accepts that if the Court is minded to make a costs order, that it is appropriate to fix the quantum in the range from $10,000 to $15,000.
2. I am satisfied that it is appropriate to fix the Sheriff's costs of her participation and appearances in this proceeding in the sum of $15,000 pursuant to r 63.07(3) of the Rules. This is appropriate having regard to the quantum sought, and the evidence of Mr Sergi which identifies that the costs sought to be fixed are a significant discount to the actual costs incurred. On the basis of Mr Sergi's evidence, I am satisfied that the costs sought by the Sheriff are a genuine, conservative estimate as to the costs that might be ordered on a taxation. The costs are logical, fair and reasonable, and fixing the costs will avoid the expense and delay that will arise from taxation.

C.3 Should there be a stay of execution of the 5 December 2024 costs orders?

1. On 5 December 2024, I made an order that the defendants pay the plaintiffs' costs of this proceeding, fixed in the sum of $53,000, together with the costs ordered in S CI 2018 00168 and S ECI 2018 02290 fixed in the sum of $13,927.
2. Mr Giurina seeks a stay of execution of these costs orders until the final determination of his appeal of Lorenz JR's order made on 24 January 2025 and a foreshadowed appeal of orders made by Gray J on 18 November 2024 in S ECI 2024 00204 and S ECI 2024 04767. He also seeks that the Court grant liberty to apply to seek different costs orders at the conclusion of the stay. He submits that this is appropriate so that the Court is not functus officio.
3. Gray J's orders made on 18 November 2024 allowed the sale of the Property to proceed, and allowed the Sheriff to transfer the Property to Hooks. Mr Giurina submits that there should be a stay of execution of the 5 December 2024 costs orders, because if his appeal of Gray J's decision is successful, the sale of the Property may be unwound. If that occurs, there will be no proceeds of sale against which the New Warrant for the Costs Orders may be executed.
4. As recorded in the ex tempore reasons delivered on 5 December 2024, this is, in effect, the same relief that Mr Giurina sought at the time the costs orders were made. On 5 December 2024, Mr Giurina sought that the Court not make any costs orders until his foreshadowed appeal of the 18 November 2024 orders made by Gray J has been heard and determined. I refused Mr Giurina's application on the basis that the Court must deal with the state of affairs as they presently exist, and also because the order made by Gray J the subject of Mr Giurina's proposed appeal, is valid until such time as it is set aside.[45] Nothing has changed since 5 December 2024, and for the reasons I gave on 5 December 2024, I do not consider it appropriate to stay the effect of the costs orders pending any appeal of Gray J's orders.
5. For the same reasons, I do not consider that it is appropriate to stay execution of the costs orders pending Mr Giurina's appeal of Lorenz JR's order. That order is valid and subsisting, and I see no reason to delay execution of the costs orders pending that appeal. Furthermore, it is not necessary for a stay to be granted to prevent the Court becoming functus officio. The interests of the due administration of justice warrant this proceeding being finalised without further delay.

1. I will therefore pronounce orders in the form proposed by the plaintiffs, subject to minor edits to, amongst other things, remove defined terms which are not otherwise referred to in the orders, and correcting references to the Costs Orders and the New Warrant.

[1] [2024] VSC 710.

[2] Being Orders 4 and 5 of the Orders made in S CI 2018 00168 on 30 July 2018 by Ierodiaconou AsJ, and the Costs Court Order dated 6 December 2018 in S ECI 2018 01147, pursuant to which the costs were taxed and allowed in the sum of $39,840.13 to be paid by Mr Giurina, defined in the judgment as the 'Costs Orders': judgment, [1].

[3] Being the warrant of seizure and sale issued on 1 November 2023, defined in the judgment as the 'Warrant': judgement, [1].

[4] The property located at 120 Elizabeth Street, Geelong West, Victoria 3218, defined in the judgment as the 'Property': judgment, [2].

[5] Being the Greater Geelong City Council, defined in the judgment as the 'Council': judgment, [5].

[6] (2012) 46 VR 1; [2012] VSCA 232 (Harper and Tate JJA and Beach AJA).

[7] Ibid [26]. See also Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 28) [2013] VSC 523, [19]-[20].

[12] [1993] HCA 6; (1993) 176 CLR 300.

[13] Ibid 301 (Mason CJ); 308 (Brennan J); 312 (Deane J).

[14] Ibid 302 (Mason CJ); 308 (Brennan J); 317 (Dawson J); 328 (Gaudron J).

[15] Ibid 303 (Mason CJ); 309-310 (Brennan J).

[16] Ibid 302-303 (Mason CJ); 328 (Gaudron J).

[20] [1971] AC 666.

[21] Ibid 680 (Lord Wilberforce, with whom Lord Pearson agreed).

[22] [2019] VSC 527.

[24] Affidavit of Julia Eleonora Racheha filed on 5 March 2025, [19] ('March Racheha affidavit').

[25] Affidavit of Julia Eleonora Racheha dated 10 December 2024 and filed in S CI 2018 00168, [39], Exhibit JR-3 to March Racheha affidavit, 12.

[26] [2013] VSC 231.

[28] [2009] VSC 31.

[29] [1982] HCA 41; (1982) 149 CLR 672, 684 quoted in Autodesk, 317 (Dawson J). See Mr Giurina's submissions filed on 28 March 2025, [10].

[30] See paragraph [10]-[11] above.

[32] Nicholson, [18]; Paolacci, [27].

[34] In relation to this, Mr Giurina also relied upon the summary of this principle in Zhou v Kousal [2012] VSC 187, [109] (Vickery J).

[37] [2024] VSCA 112, [68].

[38] Mr Giurina proposed this order, as set out in paragraph 1 of Annexure 1 to his submissions filed on 2 April 2025.

[39] Mr Giurina's submissions filed on 28 March 2025, Annexure 3, being the submissions of Mr Giurina in response in proceeding S ECI 2024 00204 dated 11 November 2024.

[40] [2025] VSC 155.

[43] [1992] HCA 28; (1992) 174 CLR 178.

[44] Being the total of the amounts referred to in the affidavit of Anthony Michael Sergi filed on 27 March 2025 at [7] ($34,012.25) and [10] ($14,000).

[45] Transcript of Oral Ruling, Maria (aka Mari) Deak vs Estate of the Late Carolina Nacinovich (Supreme Court of Victoria, S ECI 2022 05227, Steffensen AsJ, 5 December 2024) 87:10-12.