Bevendale v Pereira
[2010] VSC 45
•19 February 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
COMMERCIAL AND EQUITY DIVISION
AT MELBOURNE
PRACTICE COURT
No. 10721 of 2009
| BEVENDALE PTY LTD (ACN 006 392 267) | Plaintiff |
| v | |
| MARCOS GERARDO PEREIRA | Firstnamed Defendant |
| CARINA PEREIRA | Secondnamed Defendant |
| JUAN FRANCISO TORRES | Thirdnamed Defendant |
| YAZMIN LEIVA | Fourthnamed Defendant |
| LUIS MIGUEL DOS SANTOS FUNINA | Fifthnamed Defendant |
| NATIONAL AUSTRALIAN BANK LTD | Sixthnamed Defendant |
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JUDGE: | ROBSON J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 February 2010 | |
DATE OF JUDGMENT: | 19 February 2010 | |
CASE MAY BE CITED AS: | Bevendale v Pereira | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 45 | |
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PRACTICE AND PROCEDURE - r 45.03 Supreme Court (General Civil Procedure) Rules 2005 – originating motion - application for judgment against defendants who failed to file a notice of appearance - application under r 45.03(3) for leave to rely on an affidavit that was not served on defendants with the originating motion – reliance on s 29 Supreme Court Act and r 1.14 Supreme Court (General Civil Procedure) Rules 2005 – importance of securing final resolution of matters – leave granted to rely on affidavit subject to conditions
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J.L. Evans | Pryles & Co |
| For the Defendants | No appearance |
Avco Financial Services Ltd v White [1977] VR 561
Brott v Shtrambrandt [2009] VSC 467
Matthews v Goodday (1861) 31 LJ Ch 282
Worrell v Issitch [2000] QSC 146
HIS HONOUR:
By an originating motion dated 16 December 2009, the plaintiff, Bevendale Pty Ltd (“Bevendale”), seeks, inter alia, a declaration that Bevendale has an equitable charge over 9 Girgorieva Court, Burnside and 21 Christina Crescent, Kurunjang (respectively the “Burnside property” and the “Kurunjang property”) and an order pursuant to s 91 of the Property Law Act that the Court direct a sale of the Burnside and the Kurunjang properties.
Bevendale is the owner of the Epping Plaza Shopping Centre (“the Plaza”) and by a lease, dated 11 January 2008, leased a shop in the Plaza to Choco Churro Pty Ltd (“Choco Churro”). The lease was supported by a guarantee executed by each of the first to fifth defendants. By clause 3(w) of the guarantee, each of the first to fifth defendants charged, in favour Bevendale, all their interest in any real estate then owned by any of them to secure moneys owing under the guarantee.
Choco Churro breached a number of conditions of the lease and Bevendale obtained two default judgments against each of the first to fifth defendants totalling $54,578.43 and costs. The judgments have been partly satisfied but as at 3 February 2010, the sum of $46,293.93 remains unpaid.
The first and second defendants, Mr and Mrs Pereira, are the registered proprietors of the Burnside property and the third and fourth defendants, Mr Torre and Ms Leiva, are the registered proprietors of the Kurunjang property.
The fifth defendant, Mr Funina, owns no real property that can be subject to the equitable charge. The sixth defendant, the NAB, is the first mortgagee of both the Burnside and the Kurunjang properties. It has declined to inform Bevendale of how much it is owed under the mortgages.
Mr Funina and the NAB filed appearances to the originating motion. The first to fourth defendants have not filed appearances.
By a summons on originating motion dated 3 February 2010, Bevendale applies for a judgment or an order in respect of the relief or remedy sought in the originating motion including an order that the plaintiff have leave pursuant to r 45.03(3) of the Supreme Court (General Civil Procedure) Rules 2005 to rely upon the affidavit of Leo Wischki sworn 1 February 2010 in support of its application for judgment against the first to fourth defendants. Mr Wischki’s affidavit is the source of the facts that I have set out above.
A sealed copy of the originating motion was served on each of the first to fourth defendants. An affidavit of service has been filed in relation to such service.
Under r 45.03(1) of the Supreme Court (General Civil Procedure) Rules 2005, where a defendant fails to file an appearance within the time limited, the court may, on application made by the plaintiff without notice to the defendant and on proof of service of the originating motion, give judgment against the defendant for the relief or remedy sought in the originating motion.
Rule 45.03(2) provides that for the purpose of the Rules, the hearing of the application is the trial of the proceeding.
Rule 45.03(3) provides that except for the purpose of proof of service of the originating motion and of the failure of the defendant to appear, the plaintiff shall not, unless the Court otherwise orders, use in evidence on the application any affidavit made by the plaintiff or on the plaintiff’s behalf and not served on the defendant with the originating motion.
Bevendale did not serve Mr Wischki’s affidavit with the originating motion. Accordingly, as referred to in the summons on the originating motion, it seeks leave pursuant to r 45.03(3) to rely on Mr Wischki’s affidavit in support of its application for judgment against the first to fourth defendants.
In support of its application for leave, Bevendale submits that the defendants had clear notice of the application for the order for sale. I accept this submission. Further, Bevendale says that it thought that the first to fourth defendants would file notices of appearance and that accordingly, Mr Wischki’s affidavit could be served on them after they had filed those notices.
Williams’ Civil Procedure Victoria states that if the plaintiff asks for leave to rely upon further affidavit material, it would be open to the court, as a condition of the grant of leave, to direct the plaintiff to serve the material on the defendant before continuing with the application.
If leave to rely on Mr Wischki’s affidavit is not given, then the originating motion against the first to fourth defendants may fail because of a lack of evidence. The plaintiffs may have to recommence the proceedings. Under s 29 of the Supreme Court Act, the court must exercise its jurisdiction in every proceeding before it as to secure that, as far as possible, all matters in dispute between the parties are completely and finally determined, and all multiplicity of proceedings concerning any of those matters is avoided. Further, under r 1.14:
1.14 Exercise of power
(1) In exercising any power under these Rules the Court—
(a) shall endeavour to ensure that all questions in the proceeding are effectively, completely, promptly and economically determined;
(b) may give any direction or impose any term or condition it thinks fit.
(2) The Court may exercise any power under these Rules of its own motion or on the application of a party or of any person who has a sufficient interest.
Accordingly, to secure the final resolution of the matters raised in the originating motion, I will grant the plaintiff leave to use in evidence the affidavit of Mr Wischki on the condition that within 30 days hereof a copy of the affidavit and the exhibits thereto is personally served on each of the first to fourth defendants along with a copy of the summons on the originating motion of 3 February 2010 and a copy of the order I propose to make herein.
It shall also be a further condition of granting leave that each of the first to fourth defendants may appear on the further hearing of this application to oppose the application and may rely on such affidavit material as they see fit and subject to such further order of the court.
The plaintiff will bear the costs of the application to the court made 18 February 2010.
The relief available under an equitable charge over land includes an application for judicial sale: see, for example, Matthews v Goodday[1] and Avco Financial Services Ltd v White[2] and the cases referred to therein. Bevendale has submitted that the reference to an action for sale in s 91 of the Property Law Act 1958 includes an application for a judicial sale. It relies on Worrell v Issitch.[3] It is clear that s 90 refers to a judicial sale and therefore, in this context, I accept that that s 91 may do so as well. In any event, it is not necessary at this stage to rule on this issue.
[1](1861) 31 LJ Ch 282.
[2][1977] VR 561 at 564 per Gillard J.
[3][2000] QSC 146.
Bevendale submits that on an application for a judicial sale, it would be relevant for the court to know of the extent of any existing securities over the subject properties. I have been told that the NAB has refused to supply this information. In my view, Bevendale should use the procedures available under the rules of court to secure such information.
I note in passing that in Brott v Shtrambrandt,[4] Beach J ruled on the invalidity of a charging clause which did not identify a property to which the charge attached under the Consumer Credit (Victoria) Code. I have assumed from the submissions of Bevendale that no such rules as contained in the Code apply to the charges in this case.
[4][2009] VSC 467.
I adjourn the further hearing of this application to 25 March 2010.
The orders of the court are as follows:
(1) That the plaintiff have leave pursuant to r 45.03(3) to rely upon the affidavit of Leo Wischki sworn 1 February 2010 in support of its application for judgment in respect to the first to fourth defendants on condition that:
(a) within 30 days hereof a copy of the following documents is personally served on each of the first to fourth defendants:
(i) the affidavit of Leo Wischki sworn 1 February 2010 and the exhibits thereto;
(ii) the summons on the originating motion of 3 February 2010; and
(iii) this order.
(b) each of the first to fourth defendants may appear on the further hearing of this application to oppose the application and may rely on such affidavit material as they see fit and subject to further order of the court; and
(c) the plaintiff take such steps as are necessary under the rules to produce to the court evidence of the current liability of the first to fourth defendants to the sixth defendant under any security held by it over the properties subject to the charges relied on by the plaintiff.
(2) The plaintiff bear the costs of the application to the court made 18 February 2010.
(3) The further hearing of the application be adjourned to 26 March 2010 in this court at 10.30 am.
(4) Liberty to apply is reserved.
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