Abdo v Said and Mantello - [2022] VSC 372

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S ECI 2020 03858

BETWEEN:

MOHAMED ABDO	Plaintiff
v
FRANK SAID and RITA SAID	Defendants
and
MARIO MANTELLO	Third Party

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JUDGE:	Garde J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 June 2022
DATE OF JUDGMENT:	29 June 2022
CASE MAY BE CITED AS:	Abdo v Said and Mantello
MEDIUM NEUTRAL CITATION:	[2022] VSC 372

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PRACTICE AND PROCEDURE – Person under disability – Approval of proposed compromise – Principles to be applied – Supreme Court (General Civil Procedure) Rules 2015 (Vic) ord 15, r 8 – Mayer v Mayer [2015] VSC 2 – Clement v Basset (1987) 46 NTR 36.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Panna QC with Ms M Bennett	Basilone Legal
For the Defendants	Mr P Corbett QC with Mr H Forrester	Coulter Roache Lawyers
For the Third Party	Mr T Mitchell	McKay Law

HIS HONOUR:

Introduction

This is an application to the Court to approve a compromise proposed by the parties to this proceeding. Approval of the compromise is required as the second defendant is a person under disability and is sought by her and by Lisa Said, her litigation guardian, under r 15.08 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’). The application is made on day six of the trial of the proceeding.

Background

The background facts to the proceeding as set out by the parties in a joint statement of issues and agreed facts dated 20 June 2022 are as follows:

1.Since about 9 September 1981, the Defendants have been the registered proprietors of the land situated at 1210 Doherty’s Road, Tarneit, Victoria and more particularly described in Certificate of Title Volume 8954 Folio 163 being Lot 23 on Plan of Subdivision 092856 (“the land”).
2.The Third Party (“Mantello”) is, and was at all material times a barrister and solicitor carrying on a legal practice at Werribee under the name Mantello Lawyers.
3.On about 9 June 2017, Mantello was retained by the Defendants to prepare a vendors’ statement and contract of sale and advise and act for the defendants in relation to the sale of the land.
4.On about 13 June 2017, the Defendants entered into an Exclusive Sale Authority … for 30 days appointing Sold Real Estate as their agent in relation to the land.

5.        The Exclusive Sale Authority included the following terms:
(a)       Vendor’s price $7,000,000 payable in 24 months
(b)       A fixed commission (including GST) of $200,000.
6.The Exclusive Sale Authority was signed by Walied Haouli (“Haouli”) on behalf of Sold Real Estate.
7.On about 2 August 2017, the Plaintiff executed a written contract of sale of real estate for the land …
8.On about 2 August 2017, the Defendants executed the Contract of Sale.
9.On about 11 August 2017, the Plaintiff and Haouli attended the land and spoke with the First Defendant.
10.On about 26 August 2017, the Plaintiff, Haouli and Khaled Abdo … attended the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abdo v Said and Mantello

Details

AGLC: Abdo v Said and Mantello [2022] VSC 372
Case: [2022] VSC 372
Decision Date: 29 June 2022

CaseChat Overview and Summary

The case of Abdo v Said and Mantello involves a dispute over the approval of a proposed compromise agreement in the Supreme Court of Victoria. The parties involved are Abdo, who is a person under a disability, and Said and Mantello, who are the respondents. The central issue before the court was whether the proposed compromise, which was intended to resolve a property dispute, was in the best interest of Abdo. The court had to consider the principles established in relevant case law and statutory provisions to determine the appropriateness of the compromise.

The legal issues that the court needed to address included whether the compromise was fair and reasonable, whether it was in the best interests of Abdo, and whether the court should approve the compromise. The court referred to the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ord 15, r 8, which outlines the procedure for the court's approval of a compromise involving a person under a disability. The principles from cases such as Mayer v Mayer and Clement v Basset were also considered, which emphasised the importance of ensuring that the compromise is fair and in the best interests of the disabled person.

The court found that the compromise was fair and reasonable, taking into account the circumstances of the case and the interests of Abdo. The court also concluded that the compromise was in Abdo's best interests, as it provided a resolution to the property dispute in a manner that was beneficial to Abdo. Based on the court's findings, it approved the proposed compromise agreement. The court's decision was grounded in the principles of ensuring that the compromise was fair, reasonable, and in the best interests of the disabled person.

The court ordered that the compromise agreement be approved and that the terms of the agreement be carried out by the parties.

Orders