Dayspring Community Ltd v Remar Australia Incorporated - [2010] VSC 352

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 3851 of 2010

REMAR AUSTRALIA INCORPORATED	Appellant
v
DAYSPRING COMMUNITY LIMITED	Respondent

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JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 August 2010
DATE OF JUDGMENT:	13 August 2010
CASE MAY BE CITED AS:	Dayspring Community Ltd v Remar Australia Incorporated
MEDIUM NEUTRAL CITATION:	[2010] VSC 352

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PRACTICE AND PROCEDURE – Appeal from the decision of an Associate Judge to set down hearing for summary proceeding for recovery of land – whether the questions arising from the defence can be determined readily and fairly by summary process – Supreme Court (General Civil Procedure) Rules 2005 (Vic) O 53.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr K.J. Naish	Moores Legal
For the Defendant	Mr M.Y. Bearman with Ms E. Konstantinou	Rigby Cooke

HER HONOUR:

This is an appeal brought by the defendant (‘Remar’) arising from orders made by Evans AsJ, setting down for hearing the plaintiff’s application under O 53 of the Supreme Court (General Civil Procedure) Rules 2005 for possession of land at 955 McDonald’s Track, Nyora, more particularly described in Certificates of Title Vol 9202 Folios 934 and 935 (‘the property’).

In appealing the orders of Evans AsJ, Remar seeks orders that pursuant to r 4.07 the proceeding continue as if commenced by writ, that the proceeding be transferred to the Commercial and Equity Division, that there be pleadings and consequential orders. In substance, Remar contends that the summary process in O 53 is inapplicable or inappropriate given the nature of Remar’s interest in the property.

By its terms, O 53 applies where the plaintiff claims the recovery of land which is occupied solely by a person or persons who entered into occupation or, having been a licensee or licensees, remained in occupation without the plaintiff’s licence or consent or that of any predecessor in title of the plaintiff. Accordingly, the land must be occupied solely by a person or persons within one or other of two categories. The person or persons must be (a) a person or persons who entered into occupation without the plaintiff’s licence or consent or that of any predecessor in title of his, or (b) a person or persons who, having been a licensee or licensees, remained in occupation without the plaintiff’s licence or consent or that of any predecessor in title of his. A tenant holding over after the termination of the tenancy is not within either category, and the service of notice on the tenant purporting to determine the holding over does not alter the position.[1]
[1]Pappas v Bowmark Pty Ltd [1998] VSCA 120.

Remar relies on the affidavit of Luis Philipe Brites Martins de Brito sworn 27 July 2010. Mr Brito is a director of Remar, which is a not-for-profit incorporated association operating as a drug rehabilitation centre providing accommodation and rehabilitation services to adults seeking to overcome drug and alcohol addictions. Remar operates under the international umbrella company ‘Remar International’, which is…

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 Dayspring Community Ltd v Remar Australia Incorporated

Details

AGLC: Dayspring Community Ltd v Remar Australia Incorporated [2010] VSC 352
Case: [2010] VSC 352
Decision Date: 13 August 2010

CaseChat Overview and Summary

In the case of Dayspring Community Ltd v Remar Australia Incorporated, the appellant, Dayspring Community Ltd, sought to appeal a decision of an Associate Judge who had refused to set down a hearing for a summary proceeding aimed at recovering land. The respondent, Remar Australia Incorporated, defended the Associate Judge's decision. The matter was heard in the Supreme Court of Victoria, where the court was tasked with determining whether the questions arising from the defence could be determined readily and fairly by the summary process, in accordance with Supreme Court (General Civil Procedure) Rules 2005 (Vic) O 53.

The primary legal issue before the court was whether the Associate Judge had erred in his assessment that the defence raised questions that could not be readily and fairly determined through the summary process. The court was required to consider the nature of the defence and whether it necessitated a more comprehensive trial. The appellant argued that the defence could indeed be addressed within the summary process, while the respondent contended that certain defences required a full trial for a fair resolution.

The court examined the requirements of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) O 53, which mandates that a summary proceeding can be utilised if the questions arising from the defence can be readily and fairly determined. The court found that the Associate Judge had not erred in his decision, as the defence raised complex issues that warranted a more thorough examination, which was not feasible within the confines of the summary process. Consequently, the court upheld the Associate Judge's decision, affirming that the questions posed by the defence were not suitable for resolution via summary proceedings.

As a result of the court's decision, the appeal was dismissed, and the Associate Judge's decision to not set down a hearing for the summary proceeding was upheld. The matter would proceed to a full trial to address the complex issues raised by the defence.

Orders