Cousins v Scully (Ruling No 1) - [2010] VSC 149

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL & EQUITY DIVISION

S CI 2007 10029

DAVID COUSINS, DIRECTOR OF CONSUMER AFFAIRS VICTORIA	Plaintiff
- and -
PETER GERARD SCULLY & ORS (according to the Schedule attached)	Defendants

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 February 2010
DATE OF JUDGMENT:	28 April 2010
CASE MAY BE CITED AS:	Cousins v Scully & Ors (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2010] VSC 149

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PRACTICE AND PROCEDURE – Application for stay under r 23.01 Supreme Court (General Civil Procedure) Rules 2005 – Alleged breaches of Fair Trading Act 1999 – Whether question to be tried – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Williams QC with Mr S Bhojani	Lisa Tickell, Solicitor, Director of Consumer Affairs Victoria
For the Second Defendant	Mr M D Wyles SC with Mr B Murphy	Voitin Lawyers

HER HONOUR:

By an originating motion filed on 17 December 2007, the plaintiff (‘the Director’) seeks declaratory, injunctive and other relief against defendants including the second defendant (‘Mr Gilfillan’) for alleged breaches of the Fair Trading Act 1999 (‘the Act’).

The originating motion, together with particulars of its contents, are treated as setting out the allegations against Mr Gilfillan for the purposes of this application.

The Director in effect alleges that Mr Gilfillan engaged in unconscionable conduct in breach of s 8 of the Act, misleading or deceptive conduct in breach of s 9 and made representations without reasonable grounds or, alternatively, when they were false, contravening ss 9, 11 and 12(b), (e), (j) and (n) by his involvement in a program known as the ‘Future Owner Program’ (‘the Program’).

Under the Program, people otherwise unable to fund the purchase of residential property would enter into terms contracts for the purchase of properties from ‘investors’ sourced by Mr Gilfillan or companies associated with him. They would also sell their furniture to the investors and hire it back. In addition, they would hand over the management of their financial affairs and pay fees for the services provided.

Mr Gilfillan now seeks an order staying the proceeding under r 23.01(1)(a) of the Supreme Court (General Civil Procedure) Rules 2005. He maintains that the affidavit material fails to disclose a cause of action against him. The Director responds that there is ample evidence of the alleged contraventions and that the application is misconceived.

I agree with the Director that the application should be dismissed. There is sufficient evidence in the affidavit material before the Court to support the allegations made against Mr Gilfillan. Mr Gilfillan has not satisfied me that the Director could not prove his case by that evidence at trial, even if the Briginshaw[1] standard were to be applied. There are real questions to be tried.
[1]See Briginshaw v Briginshaw (1938) 60 CLR 336.

I will now refer to the allegations and the relevant evidence.

The allegations

In paragraph 2 of the originating motion, the Director in…

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 Cousins v Scully (Ruling No 1)

Details

AGLC: Cousins v Scully (Ruling No 1) [2010] VSC 149
Case: [2010] VSC 149
Decision Date: 28 April 2010

CaseChat Overview and Summary

Cousins brought an application against Scully in the Supreme Court, seeking a stay of proceedings under rule 23.01 of the Supreme Court (General Civil Procedure) Rules 2005. The dispute arose from alleged breaches of the Fair Trading Act 1999, with Cousins asserting that Scully had contravened the Act. The case hinged on whether a stay should be granted pending the outcome of another proceeding that involved a similar question of law or fact.

The court was tasked with determining whether the stay should be granted and if the issues raised by Cousins warranted a trial. It had to consider the relevance and similarity of the issues in the other proceeding to the current application. The court also needed to assess whether the stay would serve the interests of justice, particularly in terms of avoiding duplication of efforts and ensuring consistency in the law's application.

In ruling on the application, the court concluded that the issues Cousins sought to have tried were not sufficiently similar to those in the other proceeding to warrant a stay. It found that the matters were distinct and that a trial of the issues was necessary. Consequently, the court refused the application for a stay, holding that the interests of justice did not support halting the current proceedings. The court's decision was based on the need to proceed with the case to ensure a fair and efficient resolution of the alleged breaches of the Fair Trading Act 1999.

Orders