Cwalina v Rose - [2025] VSCA 53

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0120
S EAPCI 2025 0005

PIOTR MACIEJ CWALINA	First Applicant
ZOFIA BOZENA MAJAK	Second Applicant
v
ALAN WESLEY ROSE	First Respondent
REGISTRAR OF TITLES	Second Respondent

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JUDGES:	BEACH and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	1 April 2025
DATE OF JUDGMENT:	1 April 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 53

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PRACTICE AND PROCEDURE – Application for extension of time in which to apply for leave to appeal from one set of orders – Application for leave to appeal from different set of orders – Applications relating to orders made in same proceeding – Consolidation – Whether applications should be consolidated – Applications ordered to heard and determined at same time.

PRACTICE AND PROCEDURE – Appeal – Application for security for costs – Whether unacceptable risk that respondent, if successful, will be unable to recover his costs of applicants’ applications – Unacceptable risk established – No discretionary factors militating against grant of security for costs – Security for costs granted.

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Counsel
Applicants:		In person
First Respondent:		Mr RC Byrnes
Second Respondent:	No appearance

Solicitors
Applicants:	In person
First Respondent:	Byrnes Legal
Second Respondent:	No appearance

BEACH JA
KENNEDY JA:

For many years, Piotr Cwalina and Alan Rose have been in dispute about land which they co-owned in Frankston South. The land was made up of two lots, referred to by the parties as the Geofrey Street Lot and the Helen Street Lot (collectively, ‘the Land’ or ‘the Lots’).
On 5 December 2023, after a three day trial in August 2023, a judge of the Trial Division (Tsalamandris J) gave judgment for Mr Rose, ordering the subdivision and partition of the Land. The critical issue at trial was whether a settlement agreement made between Mr Rose and Mr Cwalina in 2017 pertaining to the division of interests in relation to the Land remained in force, and whether it (the settlement agreement) should be specifically performed. Contrary to Mr Cwalina’s case, the judge found that Mr Rose had not repudiated the settlement agreement; that the settlement agreement had not been terminated; and that it should be specifically performed.[1]
[1]Rose v Cwalina [2023] VSC 721, [243]–[245] (‘Tsalamandris J Reasons’).
On 18 December 2023, in order to give effect to her judgment, her Honour ordered the subdivision and partition of the Land, and that Mr Cwalina pay out a bank loan and pay contributions to solicitors and valuers to enable the subdivision and partition to take place. Upon the subdivision and partition, Mr Rose was to take the Geofrey Street Lot, and Mr Cwalina was to take the Helen Street Lot. The judge further ordered that, in the event that Mr Cwalina did not comply with her orders, they should be vacated and, instead, the Lots should be sold subject to the supervision of the Court.
Additionally, her Honour made a costs order against Mr Cwalina, requiring him to pay Mr Rose’s costs of the proceeding on the…

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 Cwalina v Rose

Details

AGLC: Cwalina v Rose [2025] VSCA 53
Case: [2025] VSCA 53
Decision Date: 1 April 2025

CaseChat Overview and Summary

In Cwalina v Rose, the parties were involved in a dispute that required the resolution of several procedural and substantive issues before the court. The primary dispute centred around applications for extensions of time to appeal certain orders and the subsequent application for leave to appeal different orders within the same proceeding. The case was heard in a higher court where the procedural matters were brought before the judges.

The legal issues the court had to address involved whether the applications for extensions of time and leave to appeal should be consolidated and heard together. Additionally, the court needed to determine if the respondent posed an unacceptable risk of being unable to recover his costs if he were to be successful in the applications, thus warranting an order for security for costs.

The court determined that the applications should indeed be consolidated due to their interrelation within the same proceeding. The court found that there was an unacceptable risk that if the respondent were to be successful, he would be unable to recover his costs. The court also noted that there were no discretionary factors that would militate against granting the security for costs. Consequently, the application for security for costs was granted.

The final orders included the consolidation of the applications and the granting of security for costs to the respondent. This decision ensured that both applications would be heard and determined simultaneously, streamlining the process and addressing the procedural complexities involved.

Orders