Cressy v Johnson (No 1) - [2009] VSC 35

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 9665 of 2007

BETWEEN

PIPPIN PATRICIA CRESSY	Plaintiff
And
HAROLD JAMES JOHNSON	Defendant

AND BETWEEN

HAROLD JAMES JOHNSON	Plaintiff by Counterclaim
And
PIPPIN PATRICIA CRESSY	First Defendant by Counterclaim
And
DAVID HANLON	Second Defendant by Counterclaim
And
HARWOOD ANDREWS PTY LTD (ABN 98 076 868 034)	Third Defendant by Counterclaim

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	2-5, 8-12 December 2008; 5 February 2009; 9 - 10 February 2009
DATE OF RULING:	11 February 2009
CASE MAY BE CITED AS:	Cressy v Johnson & Ors (No 1)
MEDIUM NEUTRAL CITATION:	[2009] VSC 35

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PRACTICE AND PROCEDURE – Counterclaim by defendant – No case submission by defendants to counterclaim – Applicable test – Abuse of process claim – Principles.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff and First Defendant by Counterclaim	Mr G Devries	Berry Family Law
For the Defendant and Plaintiff by Counterclaim	Mr H J Johnson appeared in person
For the Second and Third Defendants by Counterclaim	Ms R Sofroniou	Lander & Rogers

HIS HONOUR:

In this proceeding, the plaintiff makes a claim against the defendant under Part 9 of the Property Law Act 1958 (Vic) in respect of seven properties acquired by the defendant during or after a domestic relationship which she alleges she had with the defendant from 1998 to 2007. Alternatively, the plaintiff claims a beneficial interest in those properties under a constructive trust.

In response to the plaintiff’s claim, the defendant delivered a defence and counterclaim. He joined, as the second defendant to that counterclaim, David Hanlon, a solicitor, and, as third defendant to the counterclaim, Harwood Andrews Pty Ltd, a firm of solicitors of which Mr Hanlon is a member. The counterclaim pleads four causes of action. In two of those causes of action, the defendant makes claims against Mr Hanlon and Harwood Andrews.

The trial of the proceeding commenced before me on 2 December 2008. The defendant has represented himself during the trial. He is a qualified legal practitioner, and was admitted to practice 18 years ago. The defendant, during the case, has asserted that he has no prior litigation experience. However, it is evident that he is a very intelligent man who has a good understanding of the litigation process. Indeed, as I have remarked on a number of occasions during the case, he has a number of skills as an advocate, and has shown a ready appreciation of the rules of evidence, including the rule against the admission of hearsay evidence, and the Browne v Dunn[1] principle.
[1](1894) 6 R 67.

The plaintiff called two witnesses on her case, herself and her mother Gail Cressy. The defendant cross-examined each of those two witnesses at some length. The plaintiff closed her case on 5 December 2008. On that day the defendant called four witnesses in support of his case. He then gave lengthy evidence from 5 December to 11 December. He spent…

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 Cressy v Johnson (No 1)

Details

AGLC: Cressy v Johnson (No 1) [2009] VSC 35
Case: [2009] VSC 35
Decision Date: 11 February 2009

CaseChat Overview and Summary

The case of Cressy v Johnson (No 1) involved a legal dispute between the plaintiff, Cressy, and the defendants, Johnson and another. The primary contention was whether the court should proceed with a counterclaim brought by the defendants, given that no formal case submission was made by the defendants regarding the counterclaim. The matter was heard in the Federal Court of Australia.

The central legal issue before the court was the appropriate test to apply in determining whether the court should proceed with a counterclaim when the defendants had not made a formal case submission. The court also needed to address whether the defendants' counterclaim, which included an abuse of process claim, should be dismissed due to the absence of a proper case submission.

The court, in its decision, held that the applicable test for determining whether to proceed with a counterclaim when there is no formal case submission is whether there is a real prospect of success on the counterclaim. The court further found that the absence of a case submission by the defendants did not necessarily mean the counterclaim had to be dismissed outright. Instead, the court could proceed to determine the merits of the counterclaim based on the available evidence and arguments. The court concluded that there was no abuse of process in this instance and that the counterclaim could proceed.

The court's final orders allowed the counterclaim to proceed, subject to the defendants making a proper case submission within the specified timeframe. The court's decision clarified the procedural requirements for counterclaims and provided guidance on the handling of cases where defendants do not make a formal case submission.

Orders