New South Wales Court of Appeal CITATION: LIRISTIS v DANIC [2010] NSWCA 250 HEARING DATE(S): 27 September 2010 JUDGMENT DATE: 28 September 2010 JUDGMENT OF: Basten JA at 1 (1) Grant leave to the appellants' to file in Court the amended notice of motion dated 16 September 2010. DECISION: (2) Stay the order of Curtis DCJ authorising the disposal of "uncollected goods" made on 19 July 2010 until the determination of the proceedings in this Court, including any proceedings seeking leave to appeal from the interlocutory orders presently the subject of an arguably invalid notice of appeal. (3) Otherwise dismiss the notice of motion. (4) Order that the costs of the motion be the appellants' costs in the proceedings in this Court. CATCHWORDS: APPEAL – civil – interlocutory orders – stay pending appeal – orders authorising sale of uncollected goods – stay of proceedings pending provision of security for costs - PERSONAL PROPERTY – bailment – authority to sell uncollected goods of bailor – whether reasonable opportunity to remove goods from premises - PROCEDURE – stay pending appeal – order permitting sale of uncollected goods – whether bailee entitled to impose conditions not contained in court order - WORDS AND PHRASES – "uncollected goods" – Uncollected Goods Act 1995 (NSW), s 5 LEGISLATION CITED: Supreme Court Act 1970 (NSW), s 101 Uncollected Goods Act 1995 (NSW), ss 3, 5 CATEGORY: Procedural and other rulings Tony Liristis – First Applicant Tasos Liristis – Second Applicant PARTIES: Rita Liristis – Third Applicant Gabriel Danic – First Respondent Steven Danic – Second Respondent FILE NUMBER(S): CA 2010/271881 COUNSEL: First applicant in person L Friedwald - Respondents SOLICITORS: Applicants self-represented Redmond Hale Simpson - Respondents LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 5081/2009 LOWER COURT JUDICIAL OFFICER: Knox DCJ; Curtis DCJ LOWER COURT DATE OF DECISION: 21 April 2010; 19 July 2010 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 2010/271881 BASTEN JA 28 September 2010 Tony LIRISTIS v Gabriel DANIC Judgment 1 BASTEN JA: Mr Tony Liristis appeared before the Court on 27 September in support of a motion seeking a stay of two sets of orders made in the District Court. (No objection was taken to him conducting the matter on his own behalf and on behalf of the second and third appellants, who are members of his family.) The primary element of the dispute relevant to this motion is the fate of property owned by the appellants, but on the premises of the respondents. 2 That property was the subject of orders made by Curtis DCJ on 19 July 2010. Neither party has sought to put before the Court in any authorised form the orders in question. However, there is on the file a document, typed on a blank sheet of paper, and unsigned, in the following terms (without the numbering, which has been added for convenience of reference): "[1] Plaintiffs' action stayed until security for costs lodge with the court. [2] Pursuant to s61(3)(a) I strike out "pain and suffering" from paragraph 3 of the amended Statement of Claim of 16 April 2010. [3] Leave to First Defendant to amend notice of Motion of 18 June 2010 by substituting s18 where s181 appears. [4] Leave to First Defendant pursuant to s18 of the Uncollected Goods Act 1995 to bring a section 9 Application in the District Court. [5] I order that on or after 30 August 2010: Gabriel Danic is authorised pursuant to s9 of the Uncollected Goods Act 1995 to dispose of all uncollected goods listed in annexure D to his affidavit sworn 9 April 2010 present on the premises of 191 Kingsgrove Rd Kingsgrove in the following manner: (a) Offer the goods for sale to Smorgon Steel Recycling of Botany and All Scrap Recycling Centre of Greenacre (the companies), (b) Accept the highest offer for sale from either of the companies, (c) In the event that no offer for sale is made by either of the companies, Gabriel Danic is authorised to dispose of the goods as he sees fit for no reward. [6] Costs of this motion to be paid by the respondent to the Motion. [7] Costs of the strike out application to be costs in the cause." 3 The form of order [5] leaves something to be desired. First, identifying goods by reference to an annexure to an affidavit, rather than a schedule to the order, is unfortunate. Further, the annexure to the affidavit is not a list of items of property, but a letter from an auctioneer and valuer to Mr Gabriel Danic with an attachment which constitutes a report valuing identified items. Secondly, description of the relevant items as "uncollected goods" may constitute a qualification on the items which are the subject of the order. For reasons which will be noted below, it is reasonably arguable that at least some of the items listed are not "uncollected goods" for the purposes of the Uncollected Goods Act 1995 (NSW). 4 The context in which the order was made is also troubling. Part of that context is provided by the orders made on 21 April 2010 by Knox DCJ, which are also subject to the present stay application. Other aspects of the context must include the nature of the proceedings brought in the District Court by the appellants, but the statement of claim is not before this Court. The orders made by Knox DCJ on 21 April 2010 were as follows: "1. The Plaintiffs are to provide security for the Defendants' costs by paying into court the sum of $25,000.00 by monies or by way of unconditional bank guarantee or by otherwise providing security for that amount in a manner satisfactory to the defendant [sic]. 2. That amount is to be paid into Court by 21 June 2010. Until that date, further proceedings are stayed. 3. The Plaintiffs are to provide, by 21 June 2010, particulars of their Statement of Claim, including the damages and loss (including any economic and non-economic loss) said to have been suffered as a result of the actions of the Defendant [sic]. 4. The matter is re-listed on 23 June 2010 at 9:30am for further hearing of the application to strike out the Statement of Claim. 5. The parties [sic] have liberty to apply for additional security at any stage of the proceedings. 6. On the Plaintiffs' compliance with the orders 1 and 2 and the outcome of any strike-out application made pursuant to order 4, the further hearing of the Plaintiffs' Notice of Motion and Amended Notice of Motion dated 16 April 2010 be stood over for further hearing." 5 There are respects in which these orders are internally contradictory. If the proceedings were stayed until 21 June 2010, one would not expect the plaintiffs to be under any obligation to take further steps in the proceedings by that date; it is also curious that the defendants can continue to seek orders against the plaintiffs thereafter. (It may have been intended that the proceedings not be stayed until that date, but be stayed thereafter if there were failure to comply with the order for security.) 6 Given that a stay was in place, it is not entirely clear whether it was appropriate for Judge Curtis to make orders on the defendants' application which would have the effect of disposing of the plaintiffs' property. 7 The difficulties do not end with the orders in the District Court. The proceedings in this Court were commenced on 2 September 2010 by filing a notice of appeal. The orders made so far in the District Court, the subject of the appeal, are undoubtedly interlocutory. An appeal, in these circumstances, is incompetent: Supreme Court Act 1970 (NSW), s 101(2)(e). Leave is required. (There may be other bases upon which leave is required.) The proper course for a respondent to take in these circumstances to is file an objection to competency of the appeal. That has not been done. Accordingly it is appropriate for interlocutory relief to be considered on the basis that the proceedings as presently instituted stand, although it may be necessary for further steps to be taken in due course by way of filing a summons seeking leave to appeal, and an order for an extension of time within which to seek such relief. Stay of order for security for costs 8 The relief sought in this respect is, in effect, an order staying the stay imposed in the District Court. (For present purposes it is not necessary to consider whether the stay was imposed by Knox DCJ on 21 April, or by order [1] made by Curtis DCJ on 19 July.) To the extent that this would allow the appellants to continue to pursue their proceedings in the District Court, thus requiring the respondents to continue to incur costs in that Court, such an order would not preserve the status quo, but would effectively disturb the status quo by setting aside the order under appeal, albeit on an interim basis. That order should be refused. Stay of orders authorising disposal of goods 9 The goods which are present on the respondents' premises include, according to the affidavit of Mr Tony Liristis dated 26 September 2010, large handcrafted sculptures which weigh over 900kg. There are other sculptures and a powerful car motor engine. Mr Liristis asserts that it would be necessary to use a crane to remove the property. (That assertion is also made in the valuation report.) 10 It appears to be common ground that the premises on which the property is located are in a state of poor repair. For this reason, there is concern as to liability for any damage or injury caused by removal of large and heavy structures. On 19 April 2010 Knox DCJ made orders with respect to the removal of the goods, the detail of which need not be repeated here, but which included an obligation that Mr Tony Liristis and Mr Tasos Liristis sign an waiver to be "in the same form as the one signed 16/4/10". 11 The form of that waiver was not in evidence, but there is in evidence a letter of 3 August 2010 (being annexure "H" to the affidavit of Mr Liristis of 26 September 2010), from solicitors for Mr Gabriel Danic stating that he "is entitled to dispose of the goods if they remain uncollected by 30 August 2010", but stating that he would permit removal of the goods prior to that date "on the following conditions", one of which was the signing of a waiver in an attached form. The waiver required acknowledgment from the appellants (or two thereof) that the premises were uninsured, that they may be unsafe and contain hazards, but that the appellants would release the defendants from any liability in respect of injury, loss or damage at the premises. 12 Whether Mr Danic was entitled to impose conditions on the collection of the goods and then rely on failure to collect the goods as engaging his entitlement to dispose of them in accordance with the Court order is a large question. For present purposes it is sufficient to note that: (a) if the Court order were unconditional, in the sense that Mr Danic was not required to allow the appellants an opportunity (or a reasonable opportunity) to remove the goods, that may constitute an arguable ground of appeal; (b) if the order were subject to an implied condition that Mr Danic permit a reasonable opportunity to collect the goods, it is arguable that such an opportunity has not been provided, and (c) to the extent that the order only permits sale in the case of "uncollected goods", the goods may not constitute "uncollected goods" within the meaning of the Uncollected Goods Act . 13 In relation to the last point, the Act provides a definition of "uncollected goods" in s 3, by reference to s 5 which, relevantly, provides: " 5 When goods uncollected for purposes of Act Bailed goods are uncollected for the purposes of this Act if: (a) the goods are ready for delivery to the bailor in accordance with the terms of the bailment, but the bailor has failed to take delivery of the goods or, if those terms so provide, to give directions as to their delivery …" 14 There is a reasonably arguable case that either the entitlement to sell has not yet arisen or that the order in its present form should not have been made. 15 The evidence also demonstrates that some at least of the goods may be unique goods in the form of handcrafted sculptures, the destruction of which could not be made good by the payment of damages. (Indeed, their very destruction might render a proper valuation difficult.) 16 In these circumstances, an order should be made staying the order authorising the disposal of uncollected goods, made by Judge Curtis on 19 July 2010. The stay should remain in force until the determination of the proceedings in this Court, including any proceedings seeking leave to appeal from the interlocutory orders presently the subject of an arguably invalid notice of appeal. 17 The costs of the notice of motion should be the appellant's costs in the proceedings in this Court. Conclusion 18 The Court makes the following orders: (1) grant leave to the appellants' to file in Court the amended notice of motion dated 16 September 2010; (2) stay the order of Curtis DCJ authorising the disposal of "uncollected goods" made on 19 July 2010 until the determination of the proceedings in this Court, including any proceedings seeking leave to appeal from the interlocutory orders presently the subject of an arguably invalid notice of appeal; (3) otherwise dismiss the notice of motion; (4) order that the costs of the motion be the appellants' costs in the proceedings in this Court. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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