Deckers Outdoor Corporation Inc v Farley (No 3)

[2009] FCA 329

FEDERAL COURT OF AUSTRALIA

Deckers Outdoor Corporation Inc v Farley (No 3) [2009] FCA 329

DECKERS OUTDOOR CORPORATION INC v LEAH JANE FARLEY, DUSIA PTY LTD ACN 119 500 186, LEONID MYKHALOVSKYI, HEPBOURNE PTY LTD ACN 080 453 247, VLADIMIR VAYSMAN, JOSEF VAYSMAN, POLINA VAYSMAN, MILLHOUSE PTY LTD ACN 111 765 505, DIANNE SOMMER, SANDY HAZENDONK, HGU PTY LTD ACN 121 922 754, FEDIA PTY LTD ACN 119 500 444, TASKINC PTY LTD ACN 121 919 926, GIHAN EZZAT, JOANNE STRICKLAND, VERNON PTY LTD ACN 123 047 138, RASTOV PTY LTD ACN 119 498 547, VICTORIA VAYSMAN, OLIVER DOEDERLEIN, MARGARIT PEDROTTI, SAMBA ENTERPRISES PTY LTD ACN 111 968 935 and SANAURIA PTY LTD ACN 123 047 110

VID 1022 of 2007

TRACEY J
1 APRIL 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1022 of 2007

BETWEEN: DECKERS OUTDOOR CORPORATION INC
Applicant

AND:

LEAH JANE FARLEY
First Respondent

DUSIA PTY LTD ACN 119 500 186
Second Respondent

LEONID MYKHALOVSKYI
Third Respondent

HEPBOURNE PTY LTD ACN 080 453 247
Fourth Respondent

VLADIMIR VAYSMAN
Fifth Respondent

JOSEF VAYSMAN
Sixth Respondent

POLINA VAYSMAN
Seventh Respondent

MILLHOUSE PTY LTD ACN 111 765 505
Eighth Respondent

DIANNE SOMMER
Ninth Respondent

SANDY HAZENDONK
Tenth Respondent

HGU PTY LTD ACN 121 922 754
Eleventh Respondent

FEDIA PTY LTD ACN 119 500 444
Twelfth Respondent

TASKINC PTY LTD ACN 121 919 926
Thirteenth Respondent

GIHAN EZZAT
Fourteenth Respondent

JOANNE STRICKLAND
Fifteenth Respondent

VERNON PTY LTD ACN 123 047 138
Sixteenth Respondent

RASTOV PTY LTD ACN 119 498 547
Seventeenth Respondent

VICTORIA VAYSMAN
Eighteenth Respondent

OLIVER DOEDERLEIN
Nineteenth Respondent

MARGARIT PEDROTTI
Twentieth Respondent

SAMBA ENTERPRISES PTY LTD ACN 111 968 935
Twenty-First Respondent

SANAURIA PTY LTD ACN 123 047 110
Twenty-Second Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	1 APRIL 2009
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The Sixth Respondent’s motion notice of which was given on 30 March 2009 be refused.

2.The Sixth Respondent forthwith pay the Applicant’s costs of the Sixth Respondent’s motion of which notice was given on 30 March 2009.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1022 of 2007

BETWEEN: DECKERS OUTDOOR CORPORATION INC
Applicant

AND:

LEAH JANE FARLEY
First Respondent

DUSIA PTY LTD ACN 119 500 186
Second Respondent

LEONID MYKHALOVSKYI
Third Respondent

HEPBOURNE PTY LTD ACN 080 453 247
Fourth Respondent

VLADIMIR VAYSMAN
Fifth Respondent

JOSEF VAYSMAN
Sixth Respondent

POLINA VAYSMAN
Seventh Respondent

MILLHOUSE PTY LTD ACN 111 765 505
Eighth Respondent

DIANNE SOMMER
Ninth Respondent

SANDY HAZENDONK
Tenth Respondent

HGU PTY LTD ACN 121 922 754
Eleventh Respondent

FEDIA PTY LTD ACN 119 500 444
Twelfth Respondent

TASKINC PTY LTD ACN 121 919 926
Thirteenth Respondent

GIHAN EZZAT
Fourteenth Respondent

JOANNE STRICKLAND
Fifteenth Respondent

VERNON PTY LTD ACN 123 047 138
Sixteenth Respondent

RASTOV PTY LTD ACN 119 498 547
Seventeenth Respondent

VICTORIA VAYSMAN
Eighteenth Respondent

OLIVER DOEDERLEIN
Nineteenth Respondent

MARGARIT PEDROTTI
Twentieth Respondent

SAMBA ENTERPRISES PTY LTD ACN 111 968 935
Twenty-First Respondent

SANAURIA PTY LTD ACN 123 047 110
Twenty-Second Respondent

JUDGE:	TRACEY J
DATE:	1 APRIL 2009
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. By notice of motion dated 30 March 2009, Mr Josef Vaysman moves the court for orders that some or all of the money which is deposited with the court, following the sale of a factory at 1 Roper Street, Moorabbin, be made available to “the Vaysman family”.  The amount in the account is $144,483.66.  It was paid into the Federal Court of Australia Litigants’ Fund account on 19 March 2009 as a result of an order by the Court on 2 October 2008.  Mr Vaysman says that the release of some of this money is required as a matter of urgency.  This is because it is said that about $13,000 is owing in mortgages payments on residential premises at 11 Ellington Street, Caulfield and $16,950 is owing in mortgage payments on premises at 303 Balaclava Road, Caulfield.

2. The notice of motion says that the eviction notices in relation to those premises are attached.  No such eviction notices were attached to the notice of motion.  The property at 1 Roper Street, Moorabbin which was sold was not owned by Mr Vaysman.  It was owned by Hepbourne Pty Ltd.  Mr Vaysman is not presently a director or the holder of any other office in Hepbourne Pty Ltd.  The only director of that company identified in the records of the Australian Securities and Investment Commission is Mr Vladimir Vaysman.  Mr Vladimir Vaysman is also the registered owner of the two properties at 11 Ellington Street, Caulfield and 303 Balaclava Road, Caulfield. 

3. There is exhibited to an affidavit of Mr Josef Vaysman, sworn on 30 March 2009, a writ issued by the mortgagor of those premises in which, amongst other things, it seeks possession of these properties.  The defendant to that proceeding in the Victorian Supreme Court is Mr Vladimir Vaysman.  There is, therefore, no material before the court that suggests that Mr Josef Vaysman requires access to funds to satisfy the obligations that are said to arise in relation to those two properties. 

4. There is also no evidence to suggest that he is entitled to any of the funds that are presently held in court.  Those funds belong, on the evidence, to Hepbourne Pty Ltd.  They are, however, subject to a claim by former solicitors who acted for Mr Josef Vaysman and other respondents in respect of allegedly unpaid legal fees.  The amount of those allegedly outstanding fees exceeds the amount in the fund.  It would, therefore, be inappropriate to make orders releasing money from that fund to Mr Vaysman or anybody else pending resolution of the claim by the solicitors.

5. In any event, as I have already held, there is no legal basis for Mr Josef Vaysman to claim to have a right to any part of those moneys. 

6. The application will therefore be dismissed.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY.

Associate:

Dated:       7 April 2009

Counsel for the Applicant:	Mr E Heerey
Solicitor for the Applicant:	Middletons
The Sixth Respondent was self represented

Date of Hearing:	1 April 2009
Date of Judgment:	1 April 2009