Cwalina v Rose - [2024] VSCA 253

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0120

PIOTR MACIEJ CWALINA	First applicant
and
ZOFIA BOZENA MAJAK	Second applicant
v
ALAN WESLEY ROSE	Respondent

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JUDGES:	MACAULAY JA and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 October 2024
DATE OF ORDERS:	18 October 2024
DATE OF REASONS:	28 October 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 253
JUDGMENT APPEALED FROM:	[2023] VSC 721 (Tsalamandris J)

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PRACTICE AND PROCEDURE – Injunctions – Applicants applied for injunction to restrain settlement of sale of property sold pursuant to court order – Application made at eleventh hour, after extensive delay – Applicants’ prospects of success on appeal poor – Substantial prejudice to respondent and bona fide purchaser for value if injunction granted – Application for injunction refused.

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Counsel
Applicants:		Not applicable
Respondent:		Mr B Petrie with Mr J McNicol Smith
Solicitors
Applicants:	In person
Respondent:	Byrnes Legal

MACAULAY JA
J FORREST AJA:

Introduction and summary

Mr Cwalina and Ms Majak (the applicants) brought an urgent oral application seeking an injunction to restrain the settlement of the sale of property on Monday 21 October 2024. The application was made in conjunction with the filing, on the morning of Friday 18 October 2024, of an application for an extension of time within which to make an application for leave to appeal a decision made in the Trial Division of this Court.
The papers were served on the respondent, Mr Rose, and the Court was convened on Friday afternoon. After hearing from the parties, we refused the application for an injunction and otherwise adjourned the application for an extension of time within which to file an application for leave to appeal.
These are our reasons for doing so. In summary, we were not satisfied that the applicants’ prospective appeal had sufficient prospects of success to warrant the granting of an injunction, having regard to the balance of convenience and the likelihood that damages would be an adequate remedy in the event that the appeal is allowed.

Trial Division decision

After a trial for three days in August 2023, on 5 December 2023, Tsalamandris J gave judgment for Mr Rose, ordering the subdivision and partition of two lots of land — ‘1 Geofrey Street’ and ‘17 Helen Street’ — that he co-owned with Mr Cwalina. On each lot was a house. The critical issue at trial was whether a settlement agreement made between Mr Rose and Mr Cwalina pertaining to the division of interests in relation to the properties remained in force, and whether it should be specifically performed. Contrary to Mr Cwalina’s case, the judge found that Mr Rose had not repudiated the agreement; that it had not been terminated; and that it should be specifically performed.[1]
[1]Rose v Cwalina [2023] VSC 721, [243], [245] (Tsalamandris J) (‘Reasons’).
In orders made on 18 December 2023 to give effect to her judgment, the judge ordered the subdivision and partition of the properties, and that Mr Cwalina pay out a…

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 [2024] VSCA 253
Case: [2024] VSCA 253
Decision Date: 18 October 2024

CaseChat Overview and Summary

Cwalina v Rose involved a dispute where the applicants sought an injunction to prevent the settlement of a property sale that was ordered by the court. The case was heard in an unspecified court in Australia. The applicants applied for the injunction at a very late stage, following a significant delay, and their chances of success on appeal were deemed poor. The court was tasked with determining whether to grant the injunction and, if so, under what conditions.

The primary legal issues before the court were whether the applicants' eleventh-hour application warranted an injunction and whether granting such an injunction would cause substantial prejudice to the respondent and a bona fide purchaser for value. The court had to balance the applicants' rights and interests against the rights of the other parties involved, including the potential prejudice to the respondent if the injunction was granted.

The court concluded that the applicants' application was made too late and that their prospects of success on appeal were slim. The court found that granting the injunction would cause significant prejudice to the respondent and any bona fide purchaser for value, as it would disrupt the orderly process of property settlement. The court, therefore, refused the application for an injunction.

No further orders were made by the court in this instance, as the primary application for the injunction was denied. The court's decision emphasised the importance of timely applications and the potential consequences of delaying legal proceedings.

Orders