Ryan v Vizovitis [2015] ACTCA 28

Court of Appeal (ACT)|2015-06-19|Before: Burns J

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

APPEAL - Appeal from the Master - interlocutory application - stay application - whether a stay should be granted conditional upon the appellant paying the judgment sum and costs from the proceedings below into court - where the appellant has reasonable grounds of appeal - where there is a real prospect of the appellant suffering irremediable damage if the stay is not granted - where the appeal is likely to be dealt with expeditiously - extension of time application - r 5409 Court Procedures Rules 2006 (ACT) - whether the appellant should be granted an extension of time to file the notice of appeal on the respondents.

Davey v Herbst and Bray [2011] ACTCA 27

Vizovitis v Ryan [2014] ACTSC 243

1. On 3 March 2015, I heard three applications in these proceedings:

(a) an application by the appellant dated 8 December 2014 that the judgment of Master Harper be stayed pending the outcome of this appeal;

(b) an application by the respondent dated 16 December 2014 that the Notice of Appeal be set aside or, alternatively, that the appeal be stayed until such time as the appellant obtains an order from the Court of Appeal permitting service of the Notice on the respondent later than seven days after the appeal was filed, and that such permit be conditional upon the appellant paying into court a sum of $469,587.23, being $53,250.00 for the judgment sum and $416,337.23 for costs of the proceedings below; and

(c) an application by the appellant dated 12 February 2015 that time for service of the Notice of Appeal be extended.

2. On 3 March 2015, I made an order that the time for service of the Notice of Appeal be extended to 28 November 2014, although I reserved the question of whether that order should be conditional as submitted by the respondent. I also reserved my decision on the question of a stay of the orders of a Master Harper. I have concluded that the order extending time for service of the Notice of Appeal should not be conditional, and that an order staying the orders of Master Harper should be made on condition that the appellant pays the judgment sum of $53,250.00 into court pending the outcome of the appeal.

3. The background of the dispute between the parties is set out in the reasons of Master Harper in the proceedings below: Vizovitis v Ryan [2014] ACTSC 243. The appellant was (and still is) the sole principle of a firm of solicitors practising in Tuggeranong. The respondent instructed the appellant to act for her in relation to two actions for damages for personal injury arising out of motor vehicle accidents. On 23 March 1999, the respondent and the appellant signed a document headed "Agreement as to costs". They later signed a second agreement dated 10 December 2002 bearing the same heading. The respondent paid various sums of money to the appellant pursuant to these agreements.

4. The respondent commenced proceedings in 2004 against the appellant seeking a declaration that the two agreements were void, and orders that they be set aside. By way of consequential relief she sought taxation of the costs payable by her to the appellant, and repayment of any overpayment she might be found to have made.

5. The proceedings before Master Harper occupied some 28 hearing days between 7 June 2010 and 24 April 2013. From time to time, the appellant was represented by senior counsel, by junior counsel or by herself. The respondent was represented by junior counsel throughout the proceedings. The proceedings appear to have been marked by a complete lack of commercial common sense, bearing in mind the relatively small amount in dispute. It is quite clear that the costs of both parties vastly exceed the amount that was in dispute. The costs of the respondent had not been assessed as at 3 March 2015, but were estimated by the respondent to be in the sum of $416,337.23.

6. On 19 September 2014, Master Harper handed down his decision, declaring that the agreements as to costs dated 23 March 1999 and 10 December 2002 were not binding on the parties. He ordered that judgment be entered for the respondent in the sum of $53,250.00, plus costs.

7. On 16 October 2014, the appellant lodged a Notice of Appeal appealing from the orders of Master Harper. The grounds of appeal, as then pleaded, were that the Master was in error in finding that the two costs agreements were not fair or reasonable, and that they were not binding on the parties. Unfortunately, the appellant overlooked the requirements of r 5409 of the Court Procedures Rules 2006 (ACT), which requires that the Notice of Appeal be served on the other parties to the appeal no later than seven days after it is lodged. The Notice of Appeal was not served on the respondent until 28 November 2014, some 43 days after the Notice of Appeal was filed.

8. The parties agreed that I had power to extend the period for service of the Notice of Appeal. I was satisfied that it was appropriate, and in the interests of justice, to do so based upon the relatively minor nature of the irregularity caused by the failure of the appellant to comply with r 5409, the fact that the respondent had suffered no prejudice as a consequence of that irregularity, and the significant consequences for the appellant which flow from the judgment of Master Harper, in particular from the costs order. I was also satisfied that the appeal was commenced a bone fide, and that the appellant has arguable grounds of appeal.

9. In Davey v Herbst and Bray [2011] ACTCA 27, I said, concerning the relevant test to be applied in an application to stay a judgment pending an appeal to this Court, at [10] - [12]:

I take the applicable test governing the present application to be that set out by the New South Wales Court of Appeal in Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) & Anor (1985) 2 NSWLR 685 at 694-5:

... In our opinion it is not necessary for the grant of a stay that special or exceptional circumstances should be made out. It is sufficient that the applicant for the stay demonstrates a reason or appropriate case to warrant the exercise of discretion in his favour.

... The Court has a discretion whether or not to grant the stay and, if so, as to the terms that would be fair. In the exercise of its discretion, the Court will weigh considerations such as the balance of convenience and the competing rights of the parties before it.

... Two further principles can be mentioned. The first is that where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay. Thus, where it is apparent that unless a stay is granted an appeal will be rendered nugatory, this will be a substantial factor in favour of the grant of a stay.

(References omitted)

This decision was applied by Miles CJ in Griffiths v Australian Postal Commission (1987) 87 FLR 139, and more recently by Refshauge J in Benjamin v GB Franchising Australia Pty Ltd [2008] ACTCA 11. In the latter case, as here, there was evidence that bankruptcy proceedings had been commenced by the judgment creditor. In granting the stay, Refshauge J accepted that if the appellant were made bankrupt he would not be able to pursue the appeal...

I take from these authorities the following principles:

a) in order to grant a stay it is not necessary for the applicant to demonstrate special or exceptional circumstances;

b) in order to justify the court exercising its discretion to grant a stay, the applicant must demonstrate some reason or appropriate case that warrants the exercise of the discretion;

c) such a reason would include the applicants (sic) prospects of success on the appeal, and the likelihood of the applicant suffering irremediable prejudice if the stay is not granted;

d) in determining whether to grant a stay, the competing right of the parties and the balance of convenience must be weighed.

10. I accept that the starting point is that the judgment of Master Harper is not provisional, and that the respondent should be entitled to the fruits of her judgment unless some good reason is demonstrated warranting the exercise of the Court of Appeal's discretion to stay the judgment. I am satisfied that the following matters, taken in combination, justify the exercise of my discretion to order a stay:

(a) the appellant has arguable grounds of appeal;

(b) the evidence adduced by the appellant raises real questions about the extent to which the respondent personally owns or has an interest in sufficient property to repay the judgment sum, together with any costs as assessed, if the appellant were to be successful on this appeal. I am satisfied that there is a real prospect of the appellant suffering irremediable damage if a stay is not granted; and

(c) the limited nature of the grounds of appeal, and the nature of an appeal from the Master to this Court, means that the appeal is likely to be dealt with expeditiously.

11. It appears to me, however, that it is reasonable that the appellant pay into court to abide the outcome of this appeal the judgment sum, inclusive of interest, of $53,250.00.

(a) I confirm the orders that I made on 3 March 2015 extending the period of time for service of the Notice of Appeal, and decline to make those orders conditional;

(b) the application by the respondent that the Notice of Appeal be set aside or stayed is refused; and

(c) the orders made by Master Harper in the proceedings below are stayed pending the hearing of this appeal on condition that the appellant pay into court the sum of $53,250.00 to abide the outcome of this appeal.

13. In my opinion, the costs of these applications should be reserved pending the outcome of the appeal.

I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.

Procedures Rules 2006

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Judgment (25 paragraphs)

Ryan v Vizovitis [2015] ACTCA 28 (19 June 2015)

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