Borg Property Services Pty Ltd v Pati - [2025] VSC 604

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2025 00127

BETWEEN:

BORG PROPERTY SERVICES PTY LTD	Appellant
v
GULSHEN PATI	Respondent

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	5 September 2025
DATE OF JUDGMENT:	24 September 2025
CASE MAY BE CITED AS:	Borg Property Services Pty Ltd v Pati
MEDIUM NEUTRAL CITATION:	[2025] VSC 604

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JUDICIAL REVIEW — Appeal on a question of law pursuant to s 109 of the Magistrates’ Court Act 1989 (Vic) — Claim against former employee for recovery of allegedly unauthorised payment of legal fees — Whether the magistrate mistook the evidence and made a decision no reasonable magistrate could make — Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 referred to — Whether the magistrate erred in failing to draw an inference from what was said and not said in telephone and email communications — Whether only available inference — Whether exception to the Abalos principle applies — Abalos v Australian Postal Commission (1990) 171 CLR 167, Fox v Percy (2003) 214 CLR 118, and Lee v Lee (2019) 266 CLR 129 referred to — Learned magistrate considered the appellant’s evidence but this did not overcome credibility issues — Learned magistrate did not reach a conclusion which was glaringly improbable or contrary to incontrovertible facts — Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M Rinaldi	Citation Legal
For the Respondent	Mr S Bunce	Hicks Oakley Chessell Williams Pty Ltd

HER HONOUR:

Background and introduction

These reasons concern an appeal by the appellant, Borg Property Services Pty Ltd (‘BPS’), pursuant to s 109 of the Magistrates’ Court Act 1989 (Vic) from orders made by the Magistrates’ Court at Melbourne on 28 November 2024 dismissing a claim made by BPS against a former employee, Ms Gulshen Pati. Ms Pati is the respondent to this appeal.
BPS operates a cleaning and facilities management business. The director of BPS, Jeffrey Borg, is the former brother-in-law of Ms Pati, having been married to the defendant’s sister, Cevriye Borg, for 25 years. Mr Borg and Ms Borg separated in March 2020, and are currently engaged in proceedings in the Federal Circuit and Family Court (‘FCAFC’) relating to their divorce and an employment dispute.[1] Ms Borg was employed by BPS as an office manager/financial controller from 1998 until September 2022. In her position, Ms Borg had access to the computer systems, financial accounts and bank accounts of BPS.
[1]After the separation between Mr Borg and Ms Borg in 2020, Ms Borg continued to work at BPS until she was dismissed in September 2022. Ms Borg brought a general protections claim in the FCAFC against BPS, although the particulars of this claim are not in evidence. On 20 April 2023 BPS issued a cross-claim alleging that Ms Borg had misappropriated funds for personal expenses from BPS, and was negligent in the performance of her duties with BPS. In particular,…

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 Borg Property Services Pty Ltd v Pati

Details

AGLC: Borg Property Services Pty Ltd v Pati [2025] VSC 604
Case: [2025] VSC 604
Decision Date: 24 September 2025

CaseChat Overview and Summary

Borg Property Services Pty Ltd sought a judicial review of a decision made by a magistrate in the County Court of Victoria, against its former employee, Pati. The company sought to recover the payment of legal fees allegedly made without authority. The dispute centred on whether the magistrate erred in his interpretation of the evidence and whether he failed to draw a reasonable inference from the communications between the parties. The case involved an appeal on a question of law pursuant to section 109 of the Magistrates' Court Act 1989 (Vic).

The court had to determine whether the magistrate mistook the evidence and made a decision no reasonable magistrate could make, as discussed in Minister for Immigration and Citizenship v SZMDS. The court also needed to consider whether the magistrate erred in failing to draw an inference from what was said and not said in the telephone and email communications between the parties. The appeal hinged on whether the only available inference was that Pati had authorised the payment of the legal fees, and whether an exception to the Abalos principle applied, as discussed in Abalos v Australian Postal Commission, Fox v Percy, and Lee v Lee.

The court found that the magistrate had considered the appellant's evidence but this did not overcome credibility issues. The magistrate did not reach a conclusion that was glaringly improbable or contrary to incontrovertible facts. The court held that the appeal did not disclose any error of law by the magistrate, and dismissed the appeal. The court concluded that the magistrate's decision was open to him and was not so unreasonable as to be unjust.

The final orders of the court were that the appeal be dismissed and that the respondent pay the appellant's costs of the appeal. The court held that the appeal did not disclose any error of law by the magistrate and dismissed the appeal with costs to the respondent. The court found that the magistrate's decision was open to him and was not so unreasonable as to be unjust.

Orders