Devon v Thirteenth Kaysan Pty Ltd - [2016] VSC 291

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S CI 2015 06324

HUGH JOHN DEVON	Plaintiff
v
THIRTEENTH KAYSAN PTY LTD AND OUTPLASS PTY LTD & ORS	Defendants

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JUDGE:	ELLIOTT J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 MAY 2016
DATE OF JUDGMENT:	20 MAY 2016
CASE MAY BE CITED AS:	DEVON v THIRTEENTH KAYSAN PTY LTD
MEDIUM NEUTRAL CITATION:	[2016] VSC 291

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PRACTICE AND PROCEDURE – Application to strike out – claims ventilated in other jurisdiction – claims disclose no cause of action – stay granted – Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 23.01(1).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	I Hone (Solicitor)
For the 1^st and 2^nd defendants	Mr J D Mattin	Ajzensztat, Jeruzalski & Co
For the 3^rd to 11^th defendants	Mr M Ravech	Spigler & Schwarcz Solicitors

HIS HONOUR:

A. Introduction

By summons on originating motion filed on 15 December 2015, the plaintiff, Hugh John Devon (“Devon”), seeks various forms of relief, all of which relate to the property located at 11 Cromwell Road, South Yarra (“the Property”). Devon seeks this relief as against the defendants, who hold mortgages over the Property.

In essence, Devon seeks to “validate” an alleged agreement for the sale of the Property by public auction, which he alleges is being impeded by certain of the defendants. Devon seeks removal of all encumbrances from the title of the Property, a stay to prevent the first defendant from taking possession of the Property and damages. He seeks further relief pursuant to the National Credit Code.[1]
[1]National Consumer Credit Protection Act 2009 (Cth), Schedule 1.

By a summons filed on 6 May 2016, the first and second defendants (“the First Mortgagees”) seek an order that the originating motion be struck out as it does not disclose a cause of action, it is scandalous, frivolous and vexatious, or it constitutes an abuse of process. On 9 May 2016, the third to eleventh defendants (“the Second Mortgagees”) filed a summons seeking that the originating motion be struck out on the same grounds as those articulated in the First Mortgagees’ summons.

B. Background

It is necessary to set out a brief summary of this and related proceedings.[2] In an earlier proceeding,[3] default judgment was entered against Devon in default of appearance (“the Default Judgment”). The Default Judgment granted the First Mortgagees the right to recover possession of the Property. The Default Judgment has never been set aside. As a result, on 25 September 2014, a warrant of possession was issued with respect to the Property. Attempts have been made by Devon to stay the execution of the warrant. Those attempts, including an application heard by Lansdowne AsJ yesterday, 19 May 2016, have been unsuccessful.
[2]A detailed summary of the history of this and related proceedings is annexed to this judgment as annexure “A”.
[3]Supreme Court of Victoria proceeding 03596 of 2014.

The issues raised in this proceeding concerning the National Credit Code…

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 Devon v Thirteenth Kaysan Pty Ltd

Details

AGLC: Devon v Thirteenth Kaysan Pty Ltd [2016] VSC 291
Case: [2016] VSC 291
Decision Date: 20 MAY 2016

CaseChat Overview and Summary

Devon commenced proceedings against Thirteenth Kaysan Pty Ltd in the County Court of Victoria, seeking damages for breach of contract and other related claims. The defendants applied to the County Court to strike out the claims, arguing that the claims were ventilated in proceedings before the Supreme Court of Victoria and that they disclosed no reasonable cause of action. The defendants further sought a stay of the County Court proceedings pending the outcome of the Supreme Court proceedings. The court considered whether the claims disclosed a reasonable cause of action and whether a stay should be granted. The court held that the claims were res judicata as they were ventilated in the Supreme Court proceedings, and that the claims disclosed no reasonable cause of action. The court also held that a stay should be granted in favour of the Supreme Court proceedings. The County Court therefore struck out the claims and stayed the proceedings pending the outcome of the Supreme Court proceedings.

The court emphasised the importance of avoiding duplicative litigation and the need to ensure that parties do not incur unnecessary costs and delay. The court noted that the defendants had raised the issue of res judicata early in the proceedings, and that the plaintiffs had not provided any evidence to rebut the presumption of res judicata. The court also considered the potential for prejudice to the defendants if the County Court proceedings were to continue, given that the same issues were being litigated in the Supreme Court proceedings. The court therefore granted the application to strike out the claims and stayed the proceedings in accordance with the Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 23.01(1). The parties were directed to take all necessary steps to give effect to the stay.

Orders