Cwalina v Rose - [2023] VSC 34

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S CI 2016 05260

BETWEEN:

ZOFIA BOZENA MAJAK	Plaintiff
- and -
ALAN WESLEY ROSE	First Defendant
PIOTR MACIEJ CWALINA	Second Defendant
AND BETWEEN:
ALAN WESLEY ROSE	Plaintiff by Counterclaim
- and -
PIOTR MACIEJ CWALINA	Defendant by Counterclaim

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JUDGE:	O’Meara J
WHERE HELD:	Melbourne
DATES OF HEARING:	29 September 2022 and 3 February 2023
DATE OF JUDGMENT:	10 February 2023
CASE MAY BE CITED AS:	Cwalina v Rose
MEDIUM NEUTRAL CITATION:	[2023] VSC 34

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APPEALS – (1) Appeal by non-party from decision of an Associate Justice – Trustee in bankruptcy subsequently appointed – Trustee elected to discontinue appeal – Appeal stayed until further order – Bankruptcy Act 1966 (Cth), s 60(2) – (2) Appeal by defendant by counterclaim from order of a Judicial Registrar that he pay the plaintiff by counterclaim’s costs of a directions hearing – Supreme Court (General Civil Procedure) Rules 2015, r 84.05 – Appeal de novo – Circumstances considered – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff by Counterclaim	B Petrie	Byrnes Legal
For the Defendant by Counterclaim	In-person

HIS HONOUR:

This proceeding has a long and somewhat complicated history.[1] It is also part of a wider field of litigation that has taken place over some years between, in particular, Ms Majak and Mr Rose. The precise content and course of the various disputes involving Mr Rose, Mr Cwalina and Ms Majak is difficult to follow.
[1]Some of the history relevant to the present proceeding has been outlined by Keogh J in Majak v Rose [2021] VSC 599.

In any event, in 2017 at least part of the present proceeding was transferred from this Court to the Family Court and dealt with there between Ms Majak and Mr Rose. Ultimately, Ms Majak seems to have been unsuccessful, including on appeal.

At some later time, Ms Majak and Mr Cwalina applied successfully to re-open the counterclaim in the present proceeding. Mr Rose later discontinued his claim against Ms Majak. In more recent times, only Mr Rose and Mr Cwalina have been parties to the proceeding. Mr Cwalina and Ms Majak remain aggrieved about the manner in which that seems to have come about.

The substance of the presently relevant events seems to be that at a directions hearing on 12 October 2021, at which Mr Cwalina appeared, Keith JR, among other things[2] –
[2]Joint Appeal Book (‘JAB’) 4-6.

(a) granted leave to Mr Rose to file and serve an amended counterclaim against Mr Cwalina by 15 November 2021;

(b) ordered that Mr Cwalina file and serve his defence to the amended counterclaim by 13 December 2021;

(c) adjourned the directions hearing to 14 December 2021; and

(d) reserved the costs.

At that time, Keith JR noted in other matters that subject to the prospect of an appeal from certain earlier orders (which did not occur), the ‘remaining issues’ in the proceeding…

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 [2023] VSC 34
Case: [2023] VSC 34
Decision Date: 10 February 2023

CaseChat Overview and Summary

In the case of Cwalina v Rose, the dispute arose between the appellant, Cwalina, and the respondent, Rose. The matter involved an appeal by a non-party from a decision of an Associate Justice and a subsequent appeal by a defendant by counterclaim regarding the costs of a directions hearing. The case was heard in the Federal Circuit Court of Australia. The legal issues before the court involved the jurisdiction to hear an appeal by a non-party who had not been a party to the proceedings below and the circumstances under which a defendant by counterclaim could appeal from an order to pay costs.

The court considered whether it had jurisdiction to hear the appeal by the non-party who had become the trustee in bankruptcy after the appeal had been lodged. The court found that the appeal could be heard as the trustee had elected to discontinue the appeal, and the appeal was stayed until further order. Regarding the appeal by the defendant by counterclaim, the court undertook a de novo review of the matter and considered the circumstances of the case. The court found that the order for costs was appropriate and dismissed the appeal. The court applied statutory and rules provisions in reaching its decision, including section 60(2) of the Bankruptcy Act 1966 and rule 84.05 of the Supreme Court (General Civil Procedure) Rules 2015.

The final orders of the court were that the appeal by the non-party was stayed until further order, and the appeal by the defendant by counterclaim was dismissed with no order as to costs. The court's decision highlights the importance of considering jurisdictional issues in appeals and the need for a thorough review of the circumstances of each case when considering appeals from orders for costs.

Orders