Scandi Pty Ltd v Wright [2000] VSC 149

Supreme Court of Victoria|2000-04-14|Before: Gillard J

The application for leave to appeal is to be made on summons which must be filed within seven days of the issue of the motion and the summons shall be served not less than 14 days before the date fixed for hearing. It can be seen that the hearing of the application could be at least 21 days away from the present day. If Mr Guss was successful in his application for leave to appeal, then no doubt a stay would be granted to ensure that his appeal would not be rendered futile by events overtaking it.

This is a matter of substance in this application which I emphasize is an application for a relief for a short period to enable the appellants to properly present on adequate material their application for leave to appeal to a Master.

Whilst I am not persuaded on the arguments to date that Mr Guss has reasonable prospects of obtaining leave to appeal, I am very aware that this application has been made quickly, on insufficient and inadequate material, and the balance of convenience favours Mr and Mrs Guss being granted a short stay to enable the application for leave to appeal to be made.

I am prepared to grant relief which is a mixture of a stay and injunctive relief to preserve the status quo to enable the application to be made expeditiously. The relief is to be subject to conditions. I am not in a position to undo anything that has occurred to date which was in accordance with orders made. Therefore, it is not open to the Court to interfere with the issue and execution of the warrant of execution. However, the Court can and should freeze the situation at this stage to enable Mr and Mrs Guss to make their application for leave to appeal. In other words, to preserve the status quo for a short period to enable the applicants to apply for leave to appeal to a Master.

Accordingly, and subject to any submissions that counsel may make, I am prepared to make the following orders. This would be on the usual undertaking as to damages, and I emphasize that Mr Guss must appreciate that if Mr Wright is not permitted to occupy the premises for a period, there may be some damage flowing from that fact. Upon the usual undertaking for damages, I would be prepared to order the following orders.

These orders will be in each of the two originating motions. The appellant or appellants, as the case may be, by it or their counsel, Mr Joe Guss, undertakes to abide by any order this honourable Court may make as to damages in case this honourable Court shall hereafter be of the opinion that the respondent to the appeal shall have suffered by reason of this order which each of the appellants should pay, I order:

1. That until the hearing and determination of the application for leave to appeal or further order that the respondent Heathcote McMichael Wright be restrained from occupying or permitting any other person to occupy the premises situated at and known as Unit 10, 58 Clarendon Street, East Melbourne in the State of Victoria and removing or in any way dealing with any of the property of the appellants situated at the said premises subject to the following conditions -

(i) that Mr and Mrs Joseph Guss pay to the respondents solicitors Peter Lustig & Co the amount of any rent owing and unpaid as at 17 April 2000 by 4.15 p.m. on that day, such rent to be held in trust for the respondent until the hearing and determination of the application for leave to appeal or further order;

(ii) the appellant issue and serve the summons seeking leave to appeal by 4.15 p.m. on Monday, 17 April 2000, returnable before a Master on the 27 April 2000;

(iii) the appellant prosecute the application for leave to appeal expeditiously.

2. That the respondent, Heathcote McMichael Wright, permit Mr and Mrs Joseph Guss access to the premises on Saturday of each week commencing 15 April 2000 between the hours of 9 to 11 a.m. in the company of a representative nominated by the respondent to enable Mr and Mrs Guss to deal with their possessions and this access is to continue until further order.

5. Direct that the appellants' solicitor draw up this order and that it be signed by a judge pursuant to Rule 60.04(1) of the Rules of the Court.

Mr Osborne QC, who appeared with Mr Delaney and Miss Carroll of counsel, for Mr Wright submitted that a stay should not be granted because there was nothing to stay. He pointed out that the warrant had been executed and, accordingly, there was nothing to stay. Whilst he did not mention the case of Marriner v. Smorgon [1989] HCA 69; (1989) 167 C.L.R. 368 and (1989) V.R. 45, that case is authority for the proposition that a Court will not make a futile order, that is one that cannot be given effect to. In that case, the Court refused to set aside a warrant which had been irregularly issued because it had in fact been executed. However, that case is somewhat different to the present in that it was concerned with setting aside a warrant to correct a record, whereas the present proceedings are concerned with an application for leave to appeal against decisions made by a tribunal.

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Judgment (13 paragraphs)

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Cases Cited (3)