Ventura v Higgins [2018] NSWDC 49

District Court New South Wales

Medium Neutral Citation: Ventura v Higgins [2018] NSWDC 49 Hearing dates: 13 March 2018 Date of orders: 14 March 2018 Decision date: 14 March 2018 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Pursuant to ss 140 and 144 Civil Procedure Act 2005 (NSW) these proceedings are transferred to the Supreme Court Equity Division for the hearing of the defendants' Notice of Motion filed on 15 February 2018. (2) The registry of the District Court is to obtain a date for the hearing of the application in the Supreme Court on an urgent basis within seven (7) days if possible. (3) The stay order made by Ashford DCJ on 6 March 2018 to continue until further order. (4) Written submissions concerning costs of the notice of motion (including the costs of proceedings before other judges of this court) to be exchanged by 5 pm Monday 19 March 2018. (5) Replies to submissions on costs to be exchanged by Wednesday 21 March 2018. (6) Matter relisted for argument on Friday 23 March 2018 before Gibson DCJ in the Newcastle District Court sittings. Catchwords: PRACTICE AND PROCEDURE – plaintiffs are successful in a claim against two defendants in 2012 – corporate defendant is successful in a cross-claim against the plaintiffs – plaintiffs have their costs assessed from 2013 onwards but the cross-claimant refuses to have its costs assessed at the same time - plaintiffs obtain judgment in 2017 in the District Court on a costs certificate for $538,311.43 – plaintiffs seek to enforce the judgment against the defendants by commencing bankruptcy proceedings against the defendant in person – cross-claimant commences application for costs assessment in 2018 – both defendants then seek orders staying enforcement pursuant to s 135 Civil Procedure Act 2005 and/or "the inherent jurisdiction of the court", as well as upon equitable principles of set-off – whether the District Court has jurisdiction to hear the application – whether proceedings should be transferred by the court of its own motion to the Supreme Court pursuant to ss 135 and 140 Civil Procedure Act - whether the defendants' request to stay enforcement until further order, so that they can commence proceedings in the Supreme Court, should be granted – significant and inadequately explained delay by cross-claimant in seeking assessment of costs which is likely to continue – proceedings transferred to Supreme Court pursuant to ss 140 and 144 Civil Procedure Act. Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56 – 62, 98, 135, 140 and 144 Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: Australian Beverage Distributors Pty Ltd v Evans & Tate Premium Wines Pty Ltd [2007] NSWCA 57 Barescape Pty Ltd v Bacchus Holdings Pty Ltd (No 12) [2012] NSWSC 1591 Griffiths v Australian Broadcasting Corporation [2013] NSWSC 750 In the matter of Optimisation Australia Pty Ltd (Costs) [2018] NSWSC 280 Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46 Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300 Mahommed v Unicomb [2017] NSWCA 65 Mahommed v Unicomb [2018] NSWSC 291 Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19 Re A Debtor, No 21 of 1950 (No 2); Ex parte the Petitioning Creditors v Debtor [1951] Ch 612 Category: Procedural and other rulings Parties: First Plaintiff: Anthony Ventura Second Plaintiff: Barescape Pty Limited First Defendant: Matthew Gordon Higgins Second Defendant: Bacchus Holdings Pty Limited Representation: Counsel: Plaintiffs: Mr A Ventura Defendants: Mr P Strickland