Deak-Fabrikant v Grech - [2016] VSCA 118

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0028

LARISSA DEAK-FABRIKANT	Applicant
v
STEPHEN PHILLIP GRECH	First Respondent
and
JELVIE GRECH	Second Respondent
and
PAUL GRECH	Third Respondent
and
REGISTRAR OF TITLES	Fourth Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	26 May 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 118

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PRACTICE AND PROCEDURE – Appeal – Application for leave to appeal – Application for leave to appeal out of time – Application for extension of time within which to seek leave to appeal – Defective written case – Second defective written case – Applicant not articulating coherent argument upon which proposed appeal might succeed – Applicant’s material providing no basis upon which prospects of successful appeal might be determined – Multiple failures to comply with court orders – Undue delay – Unnecessary expense – Discretion – Failure to persuade court to exercise discretion – Application for extension of time refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearance
For the First and Second Respondents	In person
For the Third Respondent	Mr A G E Robinson	Clancy and Triado
For the Fourth Respondent	No appearance

PRIEST JA

BEACH JA:

Introduction

This is an application for an extension of time to seek leave to appeal from orders made in the Trial Division on 30 October 2014, 28 October 2015 and 10 February 2016. This application was previously before this Court on 21 March 2016, when we refused an application, made by the applicant, for a stay.[1]
[1]Deak-Fabrikant v Grech [2016] VSCA 50 (‘stay reasons’).

Background

While the background of the dispute between the parties and the conduct of the proceeding in the Trial Division has been set out in our earlier judgment,[2] in order to understand the issues involved in the application for an extension of time, it is necessary to set out these matters again.
[2]Stay reasons [1]–[8].

The applicant and the third respondent were in a de facto relationship for a number of years. While the parties are unable to agree when this relationship commenced, they agree that it ended in September 2008. The first and second respondents are husband and wife. The first respondent is the son of the third respondent. The fourth respondent is the Registrar of Titles.[3]
[3]The fourth respondent took no relevant part in the proceedings in the Trial Division, and has taken no part in the applications in this Court.

The first and second respondents were the registered proprietors of five properties, described in the proceeding below as the Altona property, the Sanctuary Lakes property, the Speakmen Street property, the Errol Street property and the Ballarat Road property. On 23 October 2008, the applicant lodged caveats over each of the five properties claiming an interest in fee simple in the properties. The basis for the interest claimed in each caveat was expressed in each caveat as follows:

By virtue of the resulting implied or constructive trust in favour of…

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 Deak-Fabrikant v Grech

Details

AGLC: Deak-Fabrikant v Grech [2016] VSCA 118
Case: [2016] VSCA 118
Decision Date: 26 May 2016

CaseChat Overview and Summary

In the matter of Deak-Fabrikant v Grech, the applicant sought to appeal a decision made by a lower court. The applicant applied for leave to appeal out of time, followed by an application for an extension of time within which to seek leave to appeal. Both applications were ultimately denied. The nature of the dispute involved the interpretation and application of procedural rules in the context of an appeal process.

The legal issues before the court were whether the applicant's applications for leave to appeal out of time and for an extension of time were justified. The court considered the applicant's failure to provide a coherent argument, multiple non-compliances with court orders, undue delay, and unnecessary expense caused by the applicant's actions. The court had to determine if these factors warranted the exercise of discretion in favour of the applicant.

The court held that the applicant's written cases were defective and did not provide a coherent argument for the proposed appeal. Additionally, the applicant's material did not provide a basis to determine the prospects of a successful appeal. The court found that the applicant's multiple failures to comply with court orders, undue delay, and unnecessary expense further justified the denial of the applications. The court concluded that the applicant had not persuaded it to exercise its discretion in their favour.

The court denied both the application for leave to appeal out of time and the application for an extension of time. The court did not grant the applicant permission to appeal the lower court's decision.

Orders