VENTURE INDUSTRIES vy AUSTRALIAN COMPETITION & CONSUMER COMMISSION SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL STEIN JA 22 June 1998 [1998] NSWCA 248 Stein JA Motion This is a notice of motion brought by the ACCC, the first respondent to an appeal by Venture Industries Pty Ltd, and Harry and Penelope Kioussis determined by the Court of Appeal on 3 March 1998. The appeal was dismissed. Subsequently, an application for a stay of judgment was made pending a special leave application to the High Court. The stay application took a considerable time to dispose of. Ultimately, on 28 May 1998, a stay was granted. It was, however, a conditional stay and some time was taken by the Court in working out the terms of that stay. Eventually, those terms were that the stay was granted upon condition that the payment of the judgment debt, interest and costs, (estimated to total approximately $2.9 million) be secured by first mortgages over specified real estate. Instruments of mortgage, in a registerable form, were to be executed and lodged for registration by 4pm on 5 June 1998. There were other conditions of the stay which I need not mention. The affidavit in support of the notice of motion, sworn by Paul Winston Fox on 16 June 1998, indicates the tortuous process and difficulties in obtaining compliance with the stay order by the delivery of duly executed mortgages over the property set out in the schedule to the order. The 5th of June passed with no compliance forthcoming. Nor did there appear to be any real likelihood of that occurring in the period after 5 June. Accordingly, on 17 June the ACCC took out the subject notice of motion seeking to discharge orders 1 and 2, being the stay and the conditions upon the stay made by the court on 28 May 1998. On the return of the summons, Mr Aitken appeared for the opponents. He made, I suppose what one might call, a last ditch stand. He has at all times been of assistance to the court, unfailingly courteous and unfailingly frank in relation to the difficulties apparently encountered with his instructing attorney Mr Milios, who is the solicitor on the record for the appellants. On the return of the notice of motion he convinced me to give one last opportunity for compliance by the delivery of the mortgages. It appeared to be his then understanding that compliance was very close and may take place by the end of last week. Accordingly, I was prepared to give one last opportunity and I stood the motion over to today (22 June 1998). Unfortunately, today we seem to be no further advanced towards compliance. Mr Aitken has appeared and endeavoured to inform me from the bar table what he understands the situation to be in relation to his instructions from Mr Milios and the delivery of the executed mortgages. He had asked Mr Milios to appear this morning because, absent any affidavit or evidence, Mr Aitken accepted his 2 UNREPORTED JUDGMENTS difficulty in convincing the court of the genuiness of the desire of the appellants to comply with the condition on the stay. However, Mr Milios has not attended and so we are without evidence. I appreciate and understand the submissions put by Mr Aitken. Indeed, there may be some merit in them in the long term. I know not. But what I have to do today is concentrate on the notice of motion before the court and the issue of whether or not the ACCC is entitled, in all the circumstances, to the orders it seeks in the motion. In one way, I suppose, it could be said that even if I declined to make the orders on the motion, because the condition has not been complied with (and compliance was required by 5 June) there is no stay. Nonetheless, I understand the applicant on the motion to be seeking to remove the stay order because of the history of the proceedings since the judgment of the Court of Appeal. I also understand its desire for, as it were, a clean slate, so that it can then consider what action to take in relation to enforcement. On the other side, of course, it may also be said that whether or not I discharge the stay order does not affect the pursuance of the special leave application in the High Court. That is, unless something occurs relating to the solvency of the appellants. It seems to me that the appellants, particularly Mr Harry Kioussis and Ms Penelope Kioussis, have been given every opportunity to come to the party. For whatever reason, and to some extent the court is in the dark, they have been unable to comply with the stay order. Promises have been repeatedly made and not fulfilled. In my opinion, it is plain that the ACCC is entitled to the orders it seeks in the notice of motion. Whether or not there will be another application made to reinstate the stay or to grant a new stay rather, remains to be seen. What action that the ACCC may take upon the discharge of the stay, also remains to be seen. I am not in a position to second guess any parties' future process but dealing with the notice of motion before the court it is abundantly clear that the ACCC is entitled to the order sought in para3 of the notice of motion. That is, to discharge orders Nos | and 2 made by the court on 28 May 1998. Accordingly, I make order No 3 in the notice of motion dated 16 June 1998. HIS HONOUR: Now, are there any other orders sought? FAULKNER: Yes we would seek order No 4 as to costs of the motion and ask that the costs on an indemnity basis, that's the first additional order we would seek your Honour, and secondly we would ask that service of this order made today be effected by service upon Nick Milios by facsimile and the number referred to in the affidavit of Paul Winston Fox of 16 June 1998 para3. HIS HONOUR: Is the facsimile number 95509120? FAULKNER: Yes. HIS HONOUR: Do you have copy of that proposed order in writing? FAULKNER: Yes we do your Honour it's in a larger document but if your Honour could just look at paragraph No 3, my friend has a copy there in his handwritten minute. The cost order would be as para4 of the summons. That was a motion except at the end of line | after this we would add the words, at the words there, on an indemnity basis. HIS HONOUR: Well I made an order on the 19th. That covered the 19th. Do you want me to vacate that order and substitute an order in the nature of para4 plus indemnity basis? FAULKNER: Yes. WENTURE INDUSTRIES v AUSTRALIAN COMPETITION & CONSUMER COMMISSION (Stein JA) HIS HONOUR: Mr Aitken two matters, do you have any submissions either on costs or on service of the order that I've just made? AITKEN: Nothing on the service. Your Honour will recall that during the last occasion on the question of costs and the question which is always a difficult one, of whether we fall within the degree of obloquy which attracts that order, I'm not talking in a moral sense except like the court bound, I really can't say it was more or less similar(?) to the last occasion. HIS HONOUR: Well I mean the only thing that I would be considering, and I'm not asked to, so I am not going to consider it, is whether or not a personal order be made against Mr Milios. I am not asked to do that so I'm not going to consider it. You might tell Mr Milios that it went through my mind. Two other matters are outstanding. One is the question of the costs of the notice of motion and the other is an additional order now sought in relation to the service of the order discharging the stay. This is sought to be effected by service on Mr Nick Milios, the solicitor on the record, by facsimile transmission to the facsimile number set out in para3 of the affidavit of Paul Winston Fox sworn 16 June 1998. There is no opposition to that order by Mr Aitken. In relation to costs, his opposition is to costs being made on a indemnity basis. On the last occasion the matter was before the court on 19 June, I saw it as appropriate to order costs of that day on an indemnity basis. It seems to me that it is even more appropriate today given the circumstances explained by Mr Aitken from the bar table in relation to Mr Milios, his non-attendance today or a provision of an affidavit by him of explanation. Indemnity costs are plainly justified. Accordingly, I make the order set out in para4 of the notice of motion, adding at the end of the sentence "on an indemnity basis". I further order that service of today's orders be effected on the appellants by service on Mr Nick Milios by facsimile transmission to fax No 95509120. Mr Faulkner, I will hand you back the short minutes.