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Dimitrovski v Australian Executor Trustees Ltd

Dimitrovski v Australian Executor Trustees Ltd

Case [2013] NSWSC 337 19 April 2013

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Dimitrovski v Australian Executor Trustees Limited [2013] NSWSC 337
Hearing dates: 4 April 2013
Decision date: 19 April 2013
Jurisdiction: Equity Division - Expedition List
Before: Pembroke J
Decision:
See paragraph [33]

Catchwords: DEFAULT JUDGMENT - application to set aside judgment and order for possession - no irregularity pursuant to Uniform Civil Procedure Rule 36.15
IRREGULARITY - meaning and scope - limited to process by which judgment entered - no irregularity simply because of the existence of arguable defence that was not raised
FINALITY - judgment regularly obtained and entered - application to set aside refused because of principle of finality
RES JUDICATA - confirmation of judgment for possession predicated on validity of mortgage, precludes challenge to validity of mortgage in separate proceedings
CAPACITY - representative capacity of executors irrelevant to liability or regularity of judgment - not necessary that they be sued and named in their capacity as executors
Legislation Cited: Powers of Attorney Act, 2003
Uniform Civil Procedure Rules 2005 NSW
Cases Cited: Angel v National Australia Bank [2001] FCA 1053
Accom Finance Pty Ltd v Mars Pty Ltd [2007] NSWSC 726
ASIC v Perpetual Trustee Co (Canberra) Ltd [2000] FCA 1726; (1999) 30 ACSR 532
Australian Regional Credit Pty Ltd v Rukavina [2010] NSWSC 1466
Avery v Saree Holdings Ltd [2012] NSWSC 463
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1
Greathead v Bromley (1798) 7 TR 455; 101 ER 1073
Kahlefeldt Securities Pty Ltd v Guraparan [2012] NSWSC 476
Kendall v Carnegie [2006] NSWCA 302; 68 NSWLR 193
Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508
Morelend Finance Corporation (Vic) Pty Ltd v Levine (1990) VR 205
Permanent Custodians Limited v Ali [2008] NSWSC 1264
Perpetual Trustees Australia Ltd v Heperu Pty Ltd [No 2] [2009] NSWCA 387
Port of Melbourne Authority v Anshum [1981] HCA 45; (1981) 147 CLR 589
Category: Interlocutory applications
Parties: George Dimitrovski - plaintiff
Australian Executor Trustees Limited - first defendant
Kosta Dimitrovski - second defendant
Representation: Counsel:
G A Moore - for the plaintiff
J Stoljar SC with S A Wells - for the first defendant
P Wallis - for the second defendant
Solicitors:
Kreisson Legal - for the plaintiff
Gadens Lawyers - for the first defendant
No appearance - for the second defendant

File Number(s): 2012/00280051 and 2011/00012370

Judgment

Introduction

This is a last ditch attempt by George Dimitrovski to save a valuable family asset. He seeks to have an order for possession of land at Thirroul set aside. The judgment for possession was given on 4 May 2011 in favour of Australian Executor Trustees Ltd (AET). It was a default judgment but it followed a long history of discussion and negotiation culminating in a considered decision being taken to allow AET to have the judgment for possession of the land - to which the defendants thought at the time it was entitled.

Rule 36.15

George has now changed his…

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 Dimitrovski v Australian Executor Trustees Ltd

Details

AGLC: Dimitrovski v Australian Executor Trustees Ltd [2013] NSWSC 337
Case: [2013] NSWSC 337
Decision Date: 19 April 2013

CaseChat Overview and Summary

In the matter of Dimitrovski v Australian Executor Trustees Ltd, the primary issue was whether a default judgment for possession, entered on the basis of an alleged mortgage, could be set aside. The case was heard in the Supreme Court of New South Wales. The plaintiff, Dimitrovski, sought to vacate the default judgment and argued that the judgment should be set aside due to irregularities and the existence of a defence that was not raised.

The court was required to determine the meaning and scope of 'irregularity' as outlined in Uniform Civil Procedure Rule 36.15 and whether the existence of an arguable defence, which was not raised, constituted such an irregularity. Additionally, the court had to consider the principle of finality and res judicata in the context of the default judgment. The court also needed to assess whether the capacity of the defendants, specifically their role as executors, was relevant to the regularity of the judgment.

The court held that the concept of irregularity, as per Rule 36.15, was limited to the process by which the judgment was entered and did not include the mere existence of an arguable defence. The court found that the default judgment was regularly obtained and entered, and therefore refused to set it aside due to the principle of finality. The court further held that the confirmation of the judgment for possession, which was predicated on the validity of the mortgage, precluded any challenge to the validity of the mortgage in separate proceedings. Finally, the court determined that the representative capacity of the executors was irrelevant to the liability or regularity of the judgment, and it was not necessary that they be sued and named in their capacity as executors.

Orders