Auslong v Morey - [2021] VSC 250

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 01516

Between:
AUSLONG DEVELOPMENT MANAGEMENT PTY LTD	Applicant
-and-
HOWARD MOREY	Respondent

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 March 2021
DATE OF JUDGMENT:	12 May 2021
CASE MAY BE CITED AS:	Auslong v Morey
MEDIUM NEUTRAL CITATION:	[2021] VSC 250
ORDERS/JUDGMENTS APPEALED:	Unreported orders of VCAT on 14 October 2019 & 24 February 2020; Morey v Auslong Development Management Pty Ltd [2020] VCAT 51 (15 January 2020)

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ADMINISTRATIVE LAW — Applications for leave to appeal on questions of law from VCAT orders of separate members — Joint venture agreement (“JVA”) to develop land co-owned by applicant company and respondent individual — First member refused application to stay or strike out (and refer to County Court) respondent’s proceeding seeking order for sale or division of land — Whether failure to give sufficient weight to existence of applicant’s extant County Court proceeding raising same issues and seeking specific performance, which relief VCAT lacked power to grant — Second (senior) member ordered sale of land and made other facilitative orders — Whether failure to give sufficient weight to contractual rights in JVA inconsistent with orders — Whether grounds truly questions of law or just complaints about weight given to relevant matters — Grounds treated as if were complaints that impugned orders not open — No real prospects of success on appeal — One extension of time granted; other refused — One application for leave to appeal refused; other granted but appeal dismissed — Property Law Act 1958 (Vic), Part IV; Partnership Act 1958 (Vic), s 6; Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 77 & 148.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr H L Redd	Reddie Lawyers
For the Respondent	Mr N Evans	Aptum Legal

HIS HONOUR:

Prelude

This matter has a tortuous history. It concerns a joint venture embarked upon nearly seven years ago to develop suburban land and sell it as three housing lots. The warring parties have been up to this Court previously, and settled. Each has obtained a tax ruling from the ATO concerning whether GST would be payable upon sale of the lots. An independent arbiter’s opinion has been furnished on the same topic. There are presently proceedings in both VCAT and the County Court dealing with the same subject matter, but those proceedings remain largely on hold until the determination of the present application to this Court.

All this litigation is over a dispute that, at its heart, seemed to be about whether GST might be payable by one of the parties to the joint venture. Depending upon the sale prices of the lots, the total amount of GST in question might be in the order of $120,000 to $200,000. And yet, as well as generating litigation grossly disproportionate in value to the amount of money potentially at issue, it is only the ATO that can…

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 Auslong v Morey

Details

AGLC: Auslong v Morey [2021] VSC 250
Case: [2021] VSC 250
Decision Date: 12 May 2021

CaseChat Overview and Summary

Auslong Constructions Pty Ltd sought leave to appeal against two orders of the Victorian Civil and Administrative Tribunal (VCAT). The dispute involved a joint venture agreement for the development of land co-owned by Auslong and Morey. Morey sought an order for the sale or division of the land, which VCAT granted, while Auslong sought to stay or strike out Morey's proceeding and refer it to the County Court. Auslong argued that VCAT did not sufficiently consider the County Court proceeding that raised the same issues and sought specific performance, a remedy VCAT could not grant. Auslong also argued that VCAT did not sufficiently consider the contractual rights in the joint venture agreement.

The court examined whether the grounds of appeal were truly questions of law or merely complaints about the weight given to relevant matters. The court found that the grounds were treated as complaints that impugned the orders made by VCAT. The court held that there were no real prospects of success on appeal because the orders were consistent with the contractual rights in the joint venture agreement. The court granted one extension of time for Auslong to lodge an appeal and refused another. The court refused leave to appeal in one case and granted it in another, but the appeal was ultimately dismissed.

The court ordered that the sale of the land and other facilitative orders made by VCAT were to stand. The court found that the failure to give sufficient weight to the County Court proceeding and the contractual rights in the joint venture agreement did not amount to a failure to give sufficient weight to relevant matters. The court held that the orders were consistent with the contractual rights in the joint venture agreement and that there were no real prospects of success on appeal. The appeal was dismissed, and the orders of VCAT were to stand.

Orders