Victorian Civil and Administrative Tribunal|2004-09-03|Before: Mr J, Stuart Morris J

Stephens v Garandu PL [2004] VCAT 1751 (3 September 2004)

1 Orders 1 and 2 of the order made by Deputy President Macnamara on 6 August 2004 are stayed until 4:00pm on 28 September 2004.

(given orally at the hearing and subsequently revised)

1 On 27 July 2004 Deputy President Macnamara made certain declarations in relation to a lease relating to premises at 181 Burwood Road, Hawthorn. He also ordered that the respondent, Gerandu Pty Ltd, pay to the applicants, which included the landlord, Lanlin Pty Ltd, the sum of $15,066.71 with respect to the respondent's occupancy of the premises to 31 July 2004 and $15,059.59 interest on overdue payments to 31 July 2004 ("the money order").

2 On 6 August 2004 Deputy President Macnamara made further orders, including an order that the applicants have possession of the premises and are entitled to re-enter the premises ("the possession order"). Also on that day, Deputy President Macnamara considered a stay of the two orders, namely the money order and the possession order. He granted a stay for 28 days from 6 August 2004. The intention of granting the stay was to protect the position of the respondent, Gerandu Pty Ltd, pending a possible appeal to the Supreme Court of Victoria. It is not entirely clear, but I deduce that at the hearing on 6 August 2004 the stay in relation to the possession order was not opposed but there was a contest in relation to the money order.

3 Regardless of what happened on 6 August 2004 the stay orders of Deputy President Macnamara now having expired I feel free to determine the matter as I think fit having regard to the justice of the matter. The application for a further stay is based upon the fact that an originating motion has now been lodged with the Supreme Court seeking leave to appeal against Deputy Macnamara's decision. A summons has been issued to determine whether leave should be given and that summons is returnable before the Master on 28 September 2004.

4 The application today in relation to the possession order is not opposed. It seems to me to be appropriate to grant that order. The application in relation to the money order is opposed. In my opinion a stay should only be granted in relation to the money order if there is a real danger established on evidence that the appeal might be rendered nugatory if the appeal is successful. An example of that situation might be where the successful party before VCAT could be shown to be unlikely to repay any money paid to it in the event that the Supreme Court Appeal was successful. That has not been shown.

5 I am though attracted to an alternative conclusion, namely a conclusion that effectively requires the money owed pursuant to the order made by Deputy President Macnamara to be paid into court within a reasonably short time frame. I have determined that that time frame should be before 4:00pm on Wednesday 8 September 2004. In the event that that money is not paid there will be no stay of the money order made by Deputy President Macnamara. In the event that it is paid, the stay will operate until 4:00pm on 28 September 2004. This will enable the Master, hearing the application for leave, to determine what future course should be adopted in the event that leave is granted for the appeal. I think this solution is an appropriate one having regard to the time periods involved in this case, the amount at stake and the need to avoid Gerandu Pty Ltd avoiding its obligations in relation to the money order made by Deputy President Macnamara.

Stephens v Garandu PL [2004] VCAT 1751

At a glance

Court

Decision date

Before

Source

Judgment (10 paragraphs)

Stephens v Garandu PL [2004] VCAT 1751 (3 September 2004)

Parties