VP Trading International Pty Ltd & Anor v Ballymoss Pty Ltd

1. The plaintiffs relied upon an affidavit sworn by the sole director of the plaintiffs, Mr Joseph Saad, dated 2 May 2025. Ballymoss relied upon three affidavits sworn by its solicitor, Mr Graydon Dowd, dated 16 May 2025, 12 and 27 June 2025. The materials filed were voluminous and attached hundreds of pages of exhibits
2. The plaintiffs filed submissions dated 29 June 2025**.** Ballymoss filed submissions dated 30 June 2025. Both parties made further oral submissions at the hearing on 4 July 2025.

1. This proceeding was commenced by writ on 17 March 2020. The plaintiffs claim the sum of $12,242,205 from Ballymoss. This sum represents a debt owed by Ballymoss for alcoholic goods supplied by the second plaintiff ('VP Brands') between 4 November and 10 December 2019. The debt was assigned to the first plaintiff ('VP International').
2. On 25 August 2020, the plaintiffs obtained judgment on part of the claim in the sum of $549,314.96 ('the judgment'). Execution of the judgment was stayed on the condition Ballymoss paid the judgment debt into court. This sum was paid into court by way of a bond on 3 September 2020.
3. On 15 September 2020, Judicial Registrar Burchell (as she then was) made orders, including Order 5 which provided:

"The judgment in paragraph 1 of the orders of Judicial Registrar Tran made on 25 August 2020 is stayed until a determination of Proceeding CI-20-02138 or further order or by consent by the parties (whichever occurs first)."

1. Proceeding No CI-20-02138 ('the related proceeding') concerned a claim made by Ballymoss against one of its former customers, Kollaras & Co Pty Ltd ('Kollaras'), for sums due under outstanding invoices for sales of alcohol totalling just under $7 million. Kollaras in turn counterclaimed for an equivalent amount for breach of warranty relating to unpaid import duty on the stock. VP Brands was joined as a third party and as a second defendant by counterclaim. The Commonwealth of Australia (in its capacity as the Australian Border Force) was joined as a third defendant because of its alleged failure to pay drawbacks on customs duty paid. Similar issues to this case arose in the related proceeding about whether customs duty had been paid on the alcoholic stock in question.
2. The related proceeding has been determined. The parties to that litigation resolved it on terms which are undisclosed. On 20 December 2024, I made orders by consent dismissing the related proceeding, including the counterclaim. Orders were also made whereby Ballymoss discontinued its claim against VP Brands and agreed to pay its costs.
3. On 27 November 2024, Ballymoss filed an amended defence and counterclaim. The counterclaim was new, sizeable and brought against VP Brands. It revolves around allegations that customs duty was not paid by VP Brands on alcoholic beverages it supplied to Ballymoss between 18 February 2017 to 10 December 2019.
4. Ballymoss has received two statutory demands from the Commissioner of Taxation for alleged unpaid customs duty owing on goods sold to Ballymoss by VP Brands. The first demand is dated 13 May 2022 and sought payment in the sum of $205,473,287.57 pursuant to s35A of the Customs Act 1901 (Cth). The second demand dated 28 March 2023 sought payment of $221,588,839.54. Relying on various causes of action pleaded in its counterclaim, Ballymoss seeks damages from VP Brands in the latter amount or, alternatively, an indemnity equal to the unpaid custom duty on the goods.
5. Ballymoss has sought a review of the ATO's decision relating to the statutory demands at the Administrative Appeals Tribunal ('AAT'). The ATO filed its materials in opposition to the review on 31 March 2024. There was scant evidence about the progress of the AAT proceeding and no indication of when it is likely to be heard.

1. Given the related proceeding has been determined, (being the first condition to lifting the stay set out in Order 5 above) the plaintiffs argue the stay on the judgment debt has expired. Accordingly, VP Brands asks the Court to direct the Registry to release the security bond to it.
2. Ballymoss opposes the release of the funds on two grounds. The first ground is that it would be contrary to the interests of justice for the funds to be released now given the sizeable quantum of Ballymoss's counterclaim. If the defendant's counterclaim succeeds, then it will be entitled to recover damages from VP Brands in the amount of $205,473,287.57.[1] This far exceeds the amount of the funds presently held in court.
3. The second ground relied upon by Ballymoss is its concern that if the funds are released to VP Brands, those funds will be dissipated and, ultimately, any judgment Ballymoss obtains will be frustrated. Ballymoss argued the evidence led showed there was a risk of dissipation of assets. Ballymoss relied upon the fact that three restraining orders had been made in this Court restraining Mr Joesph Saad from disposing of assets. Subsequent applications by Mr Saad to revoke these orders were unsuccessful, as was an appeal to the Court of Appeal. In response, the plaintiffs argued that these orders did not apply to the plaintiffs. But as Ballymoss pointed out, the third restraining order prevented Mr Saad from dealing with assets provided to a company called Epiq. There was evidence that VP Brands had been remitting substantial sums to this company which in turn were being sent offshore to Singapore. As Mr Saad is the controlling mind of the plaintiffs, being the sole director of each company, then the distinction sought to be drawn by the plaintiffs carries little weight in my view. The fact remains there is evidence that shows there could be a risk of dissipation of the funds currently held in Court if they are released to the plaintiffs.
4. Ballymoss also points to the following matters:

(a) VP Brands has a paid-up share capital of $12;

(b) the sole director of VP Brands is currently facing criminal prosecution; and

(c) Australian Border Force obtained restraining orders over certain assets of VP Brands on the basis that there was a risk of it transferring assets out of the jurisdiction.

1. In support of its case, Ballymoss says that Rule 66.14 is applicable, as it seeks to rely upon events which have occurred after the judgment. The counterclaim is one such event. Ballymoss does have a liability for which it is currently liable, although not yet paid because it is seeking a review at the AAT. Whilst it can be accepted that figure could be adjusted, depending on the outcome of the pending AAT review, nevertheless, Ballymoss does face a liability.
2. Both parties agreed during the hearing that Rule 66.16 of the Civil Procedure Rules governs any stay on the release of the funds_._ This rule provides that: "The Court may stay execution of a judgment". Pursuant to this rule, the court has a discretionary power to stay execution of a judgment, but only on grounds which are relevant to a stay of enforcement of proceedings. The rule does not extend to grounds which are matters of defence, which ought to have been raised in the proceeding itself.[2]
3. Rule 66.14 applies to a different circumstance, namely, where matters have come to light after judgment which might bear on the defence to the claim. There is no suggestion that anything has come to light since the part judgment was entered which could now be raised as a defence. There is no dispute the judgment debt is owed. That being so, the correct rule to consider is r66.16. This rule most often comes up for consideration where an appeal is filed and a stay is sought so as to prevent any judgment on appeal being rendered nugatory.[3] The Court is required to take into account all the circumstances of the case and is not bound by decisions on other sets of facts, and nor is it circumscribed by rigid rules. To justify a stay of execution, special circumstances are required which go to the enforcement of the judgment. The applicant bears the onus of establishing special circumstances warranting the stay.[4]

1. The plaintiffs want the funds released to them now as the conditions preventing the lifting of the previous stay no longer apply. The question then is whether a further stay on the judgment debt should be ordered under r66.16.
2. In the ordinary case, a plaintiff always runs a risk that if successful, it may not be able to recoup its judgment if the defendant lacks means. A party does not get security for a judgment in advance as opposed to obtaining an order for security for costs. If there is evidence that a defendant is seeking to remove assets with a view to thwarting any potential judgment, a court might make a freezing order to preserve those assets pending trial. This case is somewhat different because the defendant wants to preserve funds already held in court which represent an admitted part judgment debt owed to the plaintiffs. The issue then is whether Ballymoss has established there are special circumstances which would warrant a further stay of execution.
3. Self-evidently, the size of the counterclaim vastly exceeds the funds held in court. The precise quantum of the counterclaim is as yet uncertain pending the outcome of the review at the AAT. If the review succeeded, then the counterclaim could fall away. It is also unknown whether the plaintiffs would have the means financially to meet a substantial judgment, assuming Ballymoss succeeded at trial on its counterclaim. Such matters are speculative but, at present, the plaintiffs are facing a significant counterclaim which exceeds their claim for unpaid stock by a considerable margin. The fact that there is a countervailing claim - here a counterclaim, is a factor that a court can take into account when considering a stay order.[5]
4. The risk of financial impecuniosity is another factor which the Court may take into account when granting a stay.[6] If the funds are released, then there is a risk those funds will then be spent and could not be recouped if Ballymoss succeeds having regard to the financial information provided in the Dowd affidavits. No evidence was put forward on behalf of the plaintiffs regarding their solvency and ability to meet any judgment. There is also the evidence led about three restraining orders made in this Court against assets of Mr Joesph Saad which could support an inference that any funds paid over now might not be recoverable. Overall, I am satisfied there is a risk that if the funds are released now, those funds might not be available to Ballymoss if judgment was entered in its favour on the counterclaim.
5. In my view, this financial risk coupled with the sizeable counterclaim give rise to special circumstances which warrant the continuation of the stay. I consider it is appropriate to extend the stay on the funds held in court pending the hearing and determination of this proceeding or further order.

1. Ballymoss seeks a stay of this civil proceeding because there are criminal proceedings on foot against Mr Joseph Saad, the sole director of the plaintiffs.
2. The criminal proceeding involves an allegation that Mr Joseph Saad and also Mr Ramy Saad[7] have dishonestly caused loss to the Commonwealth under s135.1(5) of the Criminal Code Act 1995 (Cth) ('the Code') arising out of the alleged importation and domestic distribution of alcohol by VP Brands. They are also charged with conspiracy to defraud under s135.4(3) of the Code. The criminal proceeding was commenced following an investigation of attempts by VP Brands to evade the payment of duty on alcohol and receive drawbacks when none were payable. Ballymoss contends it can therefore be assumed that the question of whether import duty was paid on stock imported and on sold by VP Brands is at issue in the criminal proceeding. The Saads have been committed to stand trial in this Court following a committal hearing on 10 February 2025.
3. Central to Ballymoss's counterclaim is an allegation that VP Brands supplied alcohol to Ballymoss without paying import duty on that product. If the allegation that the Saads contravened sections of the Code arises from the same stock VP Brands provided to Ballymoss, then the outcome of the criminal proceeding will have a significant impact upon this proceeding, according to Ballymoss.
4. Additionally, Mario and Julie Monacella, Ballymoss's director and finance director respectively, jointly instruct the defendant's solicitors in this proceeding. Both Mario and Julie Monacella were subpoenaed to give evidence at that committal hearing and did give evidence.
5. Mr Dowd deposed to the attendance of the Ballymoss directors at the committal hearing in his first affidavit of 16 May 2025.[8] He referred to a document which had been provided to Mario and Julie Monacella by the Commonwealth Director of Public Prosecutions ('CDPP'), prior to them giving evidence at the committal hearing entitled "Information for Victims and Witnesses".
6. The information sheet was one of two documents which was provided to each of the witnesses and attached to a covering letter from the CDPP. The information sheet is a standard form document which sets out various guidelines for victims and witnesses who will be attending court. Under the heading "Preparing for Court", the witness is asked to read their statement before attending court. The sheet goes on to provide:

"Please do not discuss your evidence with other witnesses or allow them to read your statement."

1. It is this sentence that Ballymoss relies upon as amounting to a prohibition from the CDPP which prevents Mario and Julie Monacella from giving instructions to their lawyers in this civil proceeding. In paragraph 27 of Mr Dowd's first affidavit, he says after referring to the contents of the information sheet : "I believe that the CDPP has requested that Mario and Julie Monacella refrain from discussing any details of their evidence until after the trial in the criminal proceeding".
2. Mr Dowd then continues as follows:

"28. In these circumstances, both the sole director of Ballymoss and Ballymoss' Finance Director are prevented from discussing:

(a) any details relating to the transactions associated with the goods for which the plaintiffs seek payment from Ballymoss in this proceeding; and

(b) the dealings arising out of the unpaid duty and False Tax Invoices the subject of the Counterclaim filed in this proceeding.

1. Mario and Julie Monacella provide instructions to Hall & Wilcox on behalf of Ballymoss jointly. The restrictions on their ability to discuss certain details of this case will negatively impact our ability to seek instructions from Ballymoss and to prepare this matter for trial.
2. Moreover, given the overlap between the issues in dispute in the Criminal Proceeding and the Civil Proceeding, it is likely that there are further documents which may not be available to Ballymoss until after the conclusion of the Criminal Proceeding and that may be relevant to the question of whether import duty was paid on the stock supplied to Ballymoss which have not yet been identified.

31. Further, there is potential for findings to be made in the Civil Proceeding (i.e a finding that import duty was or was not paid on stock supplied to Ballymoss) which may then interfere with the proper administration of justice in the Criminal Proceeding."

1. Arising out of these matters, Mr Dowd's view is that there could be a real risk of prejudice in the proper administration of justice if the two proceedings proceed concurrently. He also states his belief that there is a real risk of inconsistent findings across jurisdictions and disadvantage in responding to civil allegations while criminal charges are unresolved. In his view, it would be more efficient and just for the criminal proceeding to proceed first, as it may assist in narrowing the facts in dispute in this proceeding and will avoid a duplication of the Court's time and resources.
2. Ballymoss accepts that a stay in this proceeding will delay the determination of the parties' claims. However, the undesirability of the two matters continuing concurrently and determining similar issues that are detrimental to Ballymoss's preparation for trial, outweighs the prejudice to the plaintiffs from a stay of this proceeding.
3. In the alternative, Ballymoss suggested that if a stay was not granted now, then the Court should hold off setting this matter down for trial until after the directions hearing in the criminal proceeding is heard in late July 2025.
4. The short point made by the plaintiffs in response is that the application is entirely misconceived as they do not seek the stay. The application for a stay is made by Ballymoss. There is no indication that any criminal proceedings are contemplated against Ballymoss or any of its potential witnesses.
5. The affidavit material relied upon was sworn by Ballymoss's lawyers and not by the defendant directly or any of its officers. The affidavit material is the view and opinion of the defendant's lawyers.
6. The plaintiffs want the matter to proceed to hearing, particularly given it has been on foot for several years now. On the basis of the materials known to them, they do not seek to stay the proceedings because prosecutions are pending against their directors.

1. Forrest J in Crespin v Francis & Anor [2016] VSC 277 said at paragraph 22:

"Turning now to the principles relevant to concurrent civil and criminal proceedings. In a general sense and, subject to one important qualification, the guidelines set out by Wooten J in McMahon v Gould describe the manner in which an application such as this is to be determined. These are:

(a) Prima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the court;

(b) It is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper grounds;

(c) The burden is on the defendant in a civil action to show that it is just and convenient that the plaintiff's ordinary rights should be interfered with;

(d) Neither an accused nor the Crown are entitled as of right to have a civil proceeding stayed because of a pending or possible criminal proceeding;

(e) The court's task is one of 'the balancing of justice between the parties', taking account of all relevant factors;

(f) Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors;

(g) One factor to take into account where there are pending or possible criminal proceedings is what is sometimes referred to as the accused's 'right of silence', and the reasons why that right, under the law as it stands, is a right of a defendant in a criminal proceeding. I return to this subject below;

(h) However, the so-called 'right of silence' does not extend to give such a defendant as a matter of right the same protection in contemporaneous civil proceedings. The plaintiff in a civil action is not debarred from pursuing action in accordance with the normal rules merely because to do so would, or might, result in the defendant, if he wished to defend the action, having to disclose, in resisting an application for summary judgment, in the pleading of his defence, or by way of discovery or otherwise, what his defence is likely to be in the criminal proceeding;

(i) The court should consider whether there is a real and not merely notional danger of injustice in the criminal proceedings;

(j) In this regard factors which may be relevant include:

(i) the possibility of publicity that might reach and influence jurors in the civil proceedings;

(iii) the possibility of miscarriage of justice e.g. by disclosure of a defence enabling the fabrication of evidence by prosecution witnesses, or interference with defence witnesses;

(iv) the burden on the defendant of preparing for both sets of proceedings concurrently;

(v) whether the defendant has already disclosed his defence to the allegations;

(vi) the conduct of the defendant, including his own prior invocation of civil process when it suited him;

(k) The effect on the plaintiff must also be considered and weighed against the effect on the defendant. In this connection I suggest below that it may be relevant to consider the nature of the defendant's obligation to the plaintiff;

(l) In an appropriate case the proceedings may be allowed to proceed to a certain stage, e.g. setting down for trial, and then stayed."

"In my opinion, the High Court and the Court of Appeal have made it clear that where a civil proceeding creates a real risk of prejudice to the defence for the criminal charges - which I infer to be one that is not fanciful or remote - then the applicant should, absent a dominant contradictory consideration, be entitled to a stay of the civil proceeding."

1. The Court was also referred to a decision of Moshinsky J in Impiombato & Anor v BHP Group Limited (ACN 004 028 077)[9] where His Honour outlined the applicable principles in similar terms.

1. Having regard to the preceding principles, I am mindful of the fact that a plaintiff is prima facie entitled to have its action tried in the ordinary course. Any interference with this entitlement requires justification on proper grounds. A stay of the civil proceeding may be warranted if it is apparent that the accused is at risk of prejudice in the conduct of its defence to the criminal trial. The cases, not unsurprisingly, refer to the risk of prejudice to an accused.
2. This application is unusual in that it is not the accused facing criminal charges who is seeking a stay of the civil proceeding but rather the defendant in this proceeding. Ballymoss claims that it will suffer prejudice if the proceeding is not stayed even though Ballymoss and/or its officers are not charged with any offence. In my view, this leads to a fundamental difficulty with the application in that neither Ballymoss nor its officers are the accused in the related criminal proceeding. Consequently, they are not exposed to the potential prejudice identified in the cases referred to above, being the rationale for a stay. This factor alone leads to the result that the stay application is misconceived.
3. The first ground relied upon by Ballymoss is the prejudice alleged in its ability to prepare the matter for trial. This is said to be based on the inability to obtain instructions. The reliance for that proposition is based on a sentence which was underlined in the information sheet provided by the CDPP to Mr and Ms Monacella when they were summoned to appear to give evidence at the committal hearing. As already noted above, this sentence simply contained a request that the witnesses not discuss their evidence with other witnesses or allow them to read their witness statement.
4. As the plaintiffs noted the "proof was in the pudding" as this so-called prohibition had not prevented the defendant from continuing to provide instructions in relation to these applications since February 2025 and provide an extensive counterclaim. The defendant's oral submission in response to this point was that the defendant's lawyers were not prevented from seeking instructions regarding what was described as "strategy".
5. In any event, I do not consider the pro forma information sheet attached to the witness summonses issued to Mr and Ms Monacella amounts to a prohibition by the CDPP preventing those witnesses giving instructions to their lawyers in this civil proceeding. In the absence of any other documents or further evidence about this aspect, I am not persuaded there is such a prohibition, contrary to the view held by the Ballymoss's lawyers.
6. The second ground relied upon was that there could be the possibility of inconsistent findings. The plaintiffs argue their claim is a straightforward claim for a debt. However, this ignores the counterclaim which is likely to involve potentially similar issues to the matters alleged in the criminal proceeding regarding the question of whether import duty was paid or not paid by the plaintiffs on the stock sold to Ballymoss.
7. Although there may be an overlap of some of the evidence in both proceedings, I am not satisfied that this and of itself warrants a stay being made now. As Moshinsky J noted in Impiombato, [10] a court will not grant a stay of a civil proceeding merely because related charges have been brought against an accused and criminal proceedings are pending. Additionally, as counsel for the plaintiffs pointed out, there would be live issues about whether findings made in either proceeding could be admissible in the other. His submission was that there was no possibility that evidence in the criminal proceeding would be admitted in the civil proceeding and vice versa with the result that there would be no possibility of inconsistent findings.
8. The Court also has to weigh up, in the interests of justice, the prejudice to the plaintiffs if a stay is granted. The plaintiffs wish to proceed with their claim. It may be at least another 12 months before this matter can be listed for trial given the current state of the Court's lists. The criminal proceeding was due to be listed for directions in late July 2025. It is as yet unknown when the criminal trial is likely to be heard. The fact is that any stay will mean a delay in the plaintiffs being able to pursue their claim - so much was accepted by Ballymoss.
9. Taking all these matters into account, I am not persuaded a stay of this proceeding is presently warranted in the interests of justice. Accordingly, Ballymoss's application for a stay of this proceeding is refused.
10. In my view, costs should follow the event. Unless the parties wish to propose any different orders as to costs, I will make the following orders:

(1) The plaintiffs' summons dated 20 May 2025 is dismissed.

(2) The plaintiffs pay the defendant's costs of the plaintiffs' summons on a standard basis, to be taxed in default of agreement.

(3) The defendant's summons dated 21 May 2025 is dismissed.

(4) The defendant pay the plaintiffs' costs of the defendant's summons on a standard basis, to be taxed in default of agreement.

(5) There be a stay of execution on the part judgment entered against the defendant on 25 August 2020, pending the hearing and determination of this proceeding or further order.

I certify that these 15 pages are a true copy of the Reasons for Ruling of Her Honour Judge A Ryan delivered on 15 August 2025.

[1] This amount is the sum referred to in Exhibit GD4 in the first Dowd affidavit being a statutory demand dated 13 May 2022 sent to Ballymoss which differs from the sum pleaded in the counterclaim

[2] Abikhair & Anor v Ali [2018] VSC 93, [22] -[23], per Derham AsJ

[4] Abikhair & Anor v Ali [2018] VSC 93, [22] -[23]

[5] Reading Entertainment Australia Pty Ltd v Burstone Victoria Pty Ltd (No 2) [2005] VSC 137, Whelan J

[6] Ibid [45] and the cases referred to in footnote 18

[7] A shareholder of the second plaintiff

[9] [2020] FCA 350, [121] - [136] ("Impiombato")