Deutsch v Rodkin - [2012] VSC 450

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2011 06667

BETWEEN:

TZIPORAH DEUTSCH	Plaintiff
- and -
PEARL RODKIN & ORS	Defendants

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JUDGE:	HARGRAVE J
WHERE HELD:	Melbourne
DATES OF HEARING:	14, 26-30 March, 2, 4, 17 April, 9, 24, 30 May, 18 July, 28 August, 24 September 2012
DATE OF JUDGMENT:	28 September 2012
CASE MAY BE CITED AS:	Deutsch v Rodkin & Ors
MEDIUM NEUTRAL CITATION:	[2012] VSC 450

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CONSPIRACY – Successive caveats lodged by related parties – Whether caveats lodged pursuant to an agreement between caveators and the first defendant – Whether dominant purpose of agreement was to injure the plaintiff – Conspiracy established – Compensatory damages awarded.

EXEMPLARY DAMAGES – Whether conspiracy involved deliberate disregard for the plaintiff’s rights – Exemplary damages awarded.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N Jones	Glesson & Co
For the Defendants	Mr S Anderson SC with Mr J Slattery	Holding Redlich

TABLE OF CONTENTS

Summary of facts and issues in the caveat proceeding............................................................... 2

Did any of the caveators have a caveatable interest?................................................................... 6

Is Robert a ‘person lodging’ a caveat for the purposes of s 118 of the Act?............................ 7

Did Robert or any of the caveators have reasonable cause to lodge a caveat?....................... 7

Were the caveats lodged pursuant to an agreement between Robert and the caveators?.... 7

Was the dominant purpose of the agreement to injure Tziporah?........................................... 9

Did the effectuation of the agreement cause loss to Tziporah?............................................... 13

Should Robert or any of the caveators pay compensation to Tziporah under s 118 of the Act? 24

Is Tziporah entitled to recover exemplary damages?................................................................ 24

Conclusion and orders.................................................................................................................... 26

On 1 June 2012, the Court delivered reasons for judgment in Robert Deutsch & Ors v Erwin Deutsch & Ors (the ‘main proceeding’).[1] As those reasons describe, this proceeding was tried together with the main proceeding, and is referred to in that proceeding as the ‘caveat proceeding’. For reasons which it is unnecessary to describe, the Court deferred delivering reasons for judgment in this proceeding until after the sale of the subject property. That sale has now occurred, and these reasons can be delivered. These reasons should be read in conjunction with the reasons given in the main proceeding.
[1][2012] VSC 227.

Summary of facts and issues in the caveat proceeding

In the context of the issues in the main proceeding and its pending trial, Erwin Deutsch transferred his sole interest as registered proprietor of the family home in which he, his wife Tziporah and their children had lived for many years (‘the property’) to Tziporah: for ‘love and affection’. The instrument of transfer was signed on 1 October 2009. Three days later, the main proceeding was fixed for trial, commencing 18 January 2010. That trial did not proceed.

In August 2011, Robert Deutsch was told by his son-in-law, Moishi Goldschmiedt, that Erwin and Tziporah were taking steps to sell the property and relocate…

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 Deutsch v Rodkin

Details

AGLC: Deutsch v Rodkin [2012] VSC 450
Case: [2012] VSC 450
Decision Date: 28 September 2012

CaseChat Overview and Summary

The case of Deutsch v Rodkin involved the plaintiff, Deutsch, who sought to establish that successive caveats were lodged by related parties in bad faith. These caveats were lodged against the plaintiff's property, thereby preventing its sale. The defendants, Rodkin and others, were found to have lodged the caveats. The dispute was heard in the Supreme Court of New South Wales. The central issue before the court was whether the successive caveats were lodged pursuant to an agreement between the caveators and the first defendant, and whether the dominant purpose of such an agreement was to injure the plaintiff.

The court examined the evidence and determined that there was indeed an agreement between the caveators and the first defendant. Furthermore, the court found that the dominant purpose of this agreement was to injure the plaintiff by preventing the sale of the property. The court concluded that a conspiracy existed, as the defendants had acted in concert to achieve a common purpose that was detrimental to the plaintiff. As a result of this finding, the plaintiff was awarded compensatory damages to compensate for the loss suffered due to the inability to sell the property.

In addition to compensatory damages, the court also considered whether the conspiracy involved a deliberate disregard for the plaintiff's rights. The court found that the defendants had indeed deliberately disregarded the plaintiff's rights in lodging the successive caveats. Consequently, the court awarded exemplary damages to the plaintiff. These damages served to punish the defendants for their conduct and to deter similar conduct in the future.

The court made an order that the defendants were liable for the compensatory and exemplary damages awarded to the plaintiff. The amount of damages was to be determined in further proceedings.

Orders