De Varda v Austin (No 3) - [2019] NSWCA 226

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: De Varda v Austin (No 3) [2019] NSWCA 226
Hearing dates: 30 August 2019
Date of orders: 30 August 2019
Decision date: 17 September 2019
Before: Bell P, McCallum JA and Emmett AJA
Decision:
1. Appeal allowed.
2. Orders 2 and 3 of Pembroke J’s decision made on 8 June 2018 to be set aside.
Catchwords: PROCEDURAL FAIRNESS – Vexatious Proceedings Act 2008 (NSW) – where persons the subject of orders made under the Act not heard and not given an opportunity to be heard before orders made – non-compliance with s 8(3) of Vexatious Proceedings Act conceded – whether Court of Appeal should itself entertain application for orders under Vexatious Proceedings Act – not appropriate to do so in the circumstances
Legislation Cited: Civil Procedure Act 2005 (NSW) s 56
Legal Profession Uniform Law 2014 (NSW) s 6
Supreme Court Act 1970 (NSW) s 75A(10)
Vexatious Proceedings Act 2008 (NSW) ss 8, 9, 13(3)
Uniform Civil Procedure Rules 2005 (NSW) rr 13.4(1), 14.28(1), 42.7(2), 51.52
Cases Cited: De Varda v Austin [2018] NSWCA 263
Mahmoud v Attorney General of New South Wales [2017] NSWCA 12
Nobarani v Mariconte [2018] HCA 36; 359 ALR 31
Potier v Attorney General in and for the State of New South Wales (2015) 89 NSWLR 284; [2015] NSWCA 129
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Viavattene v Attorney General (NSW) [2015] NSWCA 44
Zepinic v Chateau Constructions (Aust) Limited [2017] NSWSC 582
Zepinic v Chateau Constructions (Aust) Limited [2018] NSWCA 317
Category: Principal judgment
Parties: Joseph de Varda (First Appellant)
Samuel Tov-Lev (Second Appellant)
David Austin (First Respondent)
Eddy Neumann (Second Respondent)
Murray Selig (Third Respondent)
John Joseph Lowbeer (Fourth Respondent)
Representation:
Counsel:
Self-represented (Appellants)
S Callan (First Respondent)
J C McDonald with M Cobb-Clark (Second, Third and Fourth Respondents)
A G Martin, amicus curiae
Solicitors:
Gilchrist Connell (First Respondent)
Eddy Neumann Lawyers (Second, Third and Fourth Respondents)

File Number(s): 2018/00197243
Publication restriction: N/A
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Date of Decision:

08 June 2018

Before:

Pembroke J

File Number(s):

2018/143151

HEADNOTE

[This headnote is not to be read as part of the judgment]

The Appellants had commenced a series of proceedings in relation to the Strathfield and District Hebrew Congregation Synagogue. Previous proceedings brought by the Appellants had sought to prevent the sale of the Synagogue, which were unsuccessful. They then instituted further proceedings in 2018, containing numerous allegations of fraud associated with the sale, and seeking to obtain the proceeds of sale from the Synagogue.

The Second-Fourth Defendants in the further proceedings filed a notice of motion seeking their dismissal and also orders under the Vexatious Proceedings Act 2008 (NSW), but had indicated in prior correspondence that they would not be seeking the orders under the Vexatious Proceedings Act when the notice of motion was returned, and would only be…

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 De Varda v Austin (No 3)

Details

AGLC: De Varda v Austin (No 3) [2019] NSWCA 226
Case: [2019] NSWCA 226
Decision Date: 17 September 2019

CaseChat Overview and Summary

The Court of Appeal of New South Wales, comprising Bell P, McCallum JA, and Emmett AJA, considered an appeal by De Varda against orders made by Pembroke J on 8 June 2018. The dispute concerned the making of orders under the *Vexatious Proceedings Act 2008* (NSW) against De Varda.

The central legal issue before the Court of Appeal was whether the orders made by Pembroke J under the *Vexatious Proceedings Act 2008* (NSW) were valid, given that De Varda had not been heard and had not been given an opportunity to be heard before those orders were made. The non-compliance with section 8(3) of the Act was conceded by the respondent. A further question arose as to whether the Court of Appeal itself should entertain an application for orders under the Act in the circumstances of the appeal.

The Court of Appeal found that the concession regarding the non-compliance with section 8(3) of the *Vexatious Proceedings Act 2008* (NSW) was determinative. This section mandates that a person against whom an order is sought must be given an opportunity to be heard. As this procedural requirement had not been met, the orders made by Pembroke J were vitiated. The Court also determined that it was not appropriate for the Court of Appeal to entertain an application for orders under the Act in the present circumstances.

Consequently, the Court of Appeal allowed the appeal and set aside orders 2 and 3 of Pembroke J’s decision made on 8 June 2018.

Orders

Orders of the court

1. Appeal allowed.

2. Orders 2 and 3 of Pembroke J’s decision made on 8 June 2018 to be set aside.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	De Varda v Austin (No 3) [2019] NSWCA 226
Hearing dates:	30 August 2019
Date of orders:	30 August 2019
Decision date:	17 September 2019
Before:	Bell P, McCallum JA and Emmett AJA
Decision:	1. Appeal allowed. 2. Orders 2 and 3 of Pembroke J’s decision made on 8 June 2018 to be set aside.
Catchwords:	PROCEDURAL FAIRNESS – Vexatious Proceedings Act 2008 (NSW) – where persons the subject of orders made under the Act not heard and not given an opportunity to be heard before orders made – non-compliance with s 8(3) of Vexatious Proceedings Act conceded – whether Court of Appeal should itself entertain application for orders under Vexatious Proceedings Act – not appropriate to do so in the circumstances
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 56 Legal Profession Uniform Law 2014 (NSW) s 6 Supreme Court Act 1970 (NSW) s 75A(10) Vexatious Proceedings Act 2008 (NSW) ss 8, 9, 13(3) Uniform Civil Procedure Rules 2005 (NSW) rr 13.4(1), 14.28(1), 42.7(2), 51.52
Cases Cited:	De Varda v Austin [2018] NSWCA 263 Mahmoud v Attorney General of New South Wales [2017] NSWCA 12 Nobarani v Mariconte [2018] HCA 36; 359 ALR 31 Potier v Attorney General in and for the State of New South Wales (2015) 89 NSWLR 284; [2015] NSWCA 129 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 Viavattene v Attorney General (NSW) [2015] NSWCA 44 Zepinic v Chateau Constructions (Aust) Limited [2017] NSWSC 582 Zepinic v Chateau Constructions (Aust) Limited [2018] NSWCA 317
Category:	Principal judgment
Parties:	Joseph de Varda (First Appellant) Samuel Tov-Lev (Second Appellant) David Austin (First Respondent) Eddy Neumann (Second Respondent) Murray Selig (Third Respondent) John Joseph Lowbeer (Fourth Respondent)
Representation:	Counsel: Self-represented (Appellants) S Callan (First Respondent) J C McDonald with M Cobb-Clark (Second, Third and Fourth Respondents) A G Martin, amicus curiae Solicitors: Gilchrist Connell (First Respondent) Eddy Neumann Lawyers (Second, Third and Fourth Respondents)
File Number(s):	2018/00197243
Publication restriction:	N/A
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Date of Decision: 08 June 2018 Before: Pembroke J File Number(s): 2018/143151