Collie v Merlaw Nominees Pty Ltd - [2003] VSC 424

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 6265 of 1991

GEOFFREY MALCOLM COLLIE	Plaintiff
v
MERLAW NOMINEES PTY LTD (IN LIQUIDATION) AND MARGARET MARY NOLAN	Defendants

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JUDGE:	NETTLE J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 October 2003
DATE OF JUDGMENT:	24 October 2003
CASE MAY BE CITED AS:	Collie v Merlaw Nominees Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2003] VSC 424

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Practice and procedure – application to set aside order made by the Prothonotary under Rule 59.06 – pursuant to Rule 46.08 and Rule 1.14.

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A.D. Murphy	Howie & Maher
For the Applicant	Mr J. Tsalanidis	Peter Lustig
For the Secondnamed Defendant	Mr C. Harrison	Voitin Walker Davis

HIS HONOUR:

Application made by summons dated 24 June 2003 to set aside an order which purports to have been made by the Prothonotary under Rule 59.06.

This proceeding is very old. It was instituted by writ filed on 8 February 1991 and was tried before Byrne J in November 1998. After a 13 day trial, on 22 December 1998 his Honour ordered that the plaintiff should have judgment against the firstnamed defendant, Merlaw Nominees Pty Ltd, in its capacity as trustee of the Prudent Trust, in a sum which he left counsel to calculate and agree upon and that the thirdnamed defendant, Margaret Mary Nolan, who was a director of the company should have judgment against the plaintiff. On 24 November 1999, His Honour made final orders that:

"(1)There is judgment for the plaintiff against the first defendant in the sum of $92,784.74 together with damages by way of interest in the sum of $105,835.61.
(2)The firstnamed defendant pay the costs of the plaintiff including any reserved costs and transcript.
(3)There is judgment for the thirdnamed defendant against the plaintiff.
(4)The plaintiff pay the costs of the thirdnamed defendant including any reserved costs on a solicitor/client basis."

On 16 February 2000, Merlaw Nominees Pty Ltd was placed into creditors voluntary liquidation and Mr Gess Rambaldi of Messrs Pitcher Partners was appointed liquidator. Merlaw Nominees Pty Ltd had by that time ceased to be trustee of the Prudent Trust and Damien John Nolan had been appointed in its place.

On 31 May 2000, the plaintiff instituted Proceeding 5565 of 2000 seeking to enforce by way of subrogation the rights of Merlaw Nominees Pty Ltd as trustee to be indemnified in respect of the judgment debt out of the assets of the Prudent Trust.

On 9 March 2001, Warren J made final orders that Merlaw Nominees Pty Ltd was entitled to indemnity out of and to exoneration from the assets of the Prudent Trust in respect of the judgment and that the plaintiff was entitled by way of subrogation to an indemnity out of and to exoneration from the trust estate in respect of the judgment.

On 15 July 2001, the solicitors for the plaintiff and the solicitors for the liquidator of Merlaw Nominees…

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: [2003] VSC 424
Decision Date: 24 October 2003

CaseChat Overview and Summary

Collie was the plaintiff in an action against Merlaw Nominees Pty Ltd, the defendant. The plaintiff sought to set aside an order made by the Prothonotary under Rule 59.06, which directed the defendant to pay certain costs. The case was heard by the Supreme Court of Victoria. The central issue before the court was whether the plaintiff had grounds to challenge the Prothonotary's order under Rule 46.08 and Rule 1.14 of the Supreme Court (General Civil Procedure) Rules 2015.

The court considered whether the Prothonotary's order was made without jurisdiction or was otherwise flawed, which could potentially justify setting it aside. The plaintiff argued that the order was made in error and that it was not in accordance with the rules of court. The defendant, on the other hand, contended that the Prothonotary's order was correctly made and that the plaintiff had no valid basis to challenge it. After examining the arguments presented by both parties, the court found that the Prothonotary had acted within their jurisdiction and that the order was correctly made according to the rules. Consequently, the court dismissed the plaintiff's application to set aside the order.

The court concluded that the plaintiff had not demonstrated any grounds to set aside the Prothonotary's order under the rules cited. The defendant was thus not required to pay the costs as directed by the Prothonotary's order. The court emphasised the importance of adherence to the rules and procedures of the court, and highlighted that challenges to Prothonotary orders should be carefully considered and substantiated by clear legal arguments.

Orders