Bass Coast Council v Hollole - [2017] VSC 803

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S CI 2015 01856

BASS COAST SHIRE COUNCIL	Plaintiff
v
HELEN GRAHAM HOLLOLE	Defendant

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JUDGE:	Mukhtar AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	20 November 2017
DATE OF JUDGMENT:	22 December 2017
CASE MAY BE CITED AS:	Bass Coast Council v Hollole
MEDIUM NEUTRAL CITATION:	[2017] VSC 803

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JUDGMENTS ORDERS AND DECLARATIONS ― Application for declaration in default of defence ― Declaration sought on deemed admissions ― Absence of contradictor ― Whether declaration ought be made ― Supreme Court (General Civil Procedure Rules) 2015, r 21.04

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Knowles	Maddocks
For the Defendant	No appearance

HIS HONOUR:

On 22 November 2017, the Court made declarations and ancillary orders on the plaintiff’s application for judgment in default of a defence being filed by the defendant. The application was made under rule 21.04 because the claim ‘is made other than for the recovery of a debt damages or any property’ and therefore the undefended claim must come before the Court rather than be sought in a non-judicial or ministerial way from the Prothonotary. This claim can be made without notice to the defendant,[1] though the plaintiffs solicitors did serve the defendant with the summons and the supporting affidavit.
[1]See rule 21.04(2).

Paragraph 3 of the orders compelled the defendant to remove obstructions installed on a public road by 22 December 2017, failing which the Court authorised the plaintiff to remove the obstruction and recover from the defendant the costs of doing so. Since the making of the orders, the absent defendants have not challenged the orders in any way in Court. Although I stated my reasons in Court for granting judgment, on pronouncing my orders in Court on 20 November 2017, I stated my intention to prepare short written reasons, and I now do so.

The case concerns a landlocked rural property in Dalyston that belongs to Joseph Arnoldus Schellekens and Antoinette Schellekens. Theirs is land that neighbours the defendant’s land as is depicted in a plan that is Annexure A to the statement of claim. The Schellekens have vehicular access to and from the Bass Highway along a section of Northcote Street and Gibson Street. That can be better seen from Annexure A and Annexure B to my order of 20 November 2017. The defendant also has vehicular access to Bass Highway along Gibson Street. The case alleged that the defendant arranged for the placement of an obstruction in the form of post and wire fencing on the Schellekens road access along a 90 metre section of Northcote and along Gibson Street. A very close examination of the Plan of Survey Annexure B to my orders of 20 December 2017 shows the obstructions.

The proceedings were commenced by the Council on 22 April 2015. Between August 2016 and June 2017, the Court was informed the parties were involved in a mediation which came to an end without…

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.

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Details

Case: [2017] VSC 803
Decision Date: 22 December 2017

CaseChat Overview and Summary

In the matter of Bass Coast Council versus Hollole, the Supreme Court was asked to decide whether to grant a declaration sought by the Council, who had applied for it in default of a defence being filed by the defendant, Hollole. The Council sought a declaration on the basis of admissions deemed to be made by Hollole under rule 21.04 of the Supreme Court (General Civil Procedure Rules) 2015. The primary legal issue before the Court was whether a declaration should be made in the absence of any contradictor being filed by the defendant. The Court had to consider the procedural rules governing default judgments and the circumstances in which a declaration may be granted without the defendant having an opportunity to contradict the plaintiff's case.

The Court examined the relevant procedural rules and noted that rule 21.04 permitted the entry of a declaration where a party failed to file a contradictor within the prescribed time. The Court found that the Council had correctly followed the procedural steps to seek a declaration based on deemed admissions. It was also noted that Hollole had not filed a contradictor within the stipulated time, thereby forfeiting the opportunity to contest the allegations. Given these circumstances, the Court held that it was appropriate to make the declaration sought by the Council. The Court emphasised the importance of procedural compliance and the consequences of failing to adhere to the mandated timelines.

The Court concluded that the declaration sought by the Bass Coast Council should be granted. The Court found that the procedural requirements were satisfied and that there were no circumstances warranting deviation from the usual course of granting a declaration in default of a contradictor. The Court's decision was grounded in the established rules of procedure and the failure of the defendant to participate in the proceedings as required. The Court ordered that the declaration be made in favour of the Council as per the application.

Orders