Edelsten - v - Tvarkovski

[2013] VCC 929

Not restricted

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMERCIAL LIST

Revised from transcript of oral reasons

EXPEDITED CASES DIVISION

Case No. CI-11-04273

GEOFFREY EDELSTEN	Plaintiff
v
ALEX TVARKOVSKI	Defendant

---

JUDGE:	HER HONOUR JUDGE KENNEDY
WHERE HELD:	Melbourne
DATE OF HEARING:	2 August 2013
DATE OF RULING:	2 August 2013
CASE MAY BE CITED AS:	Edelsten – v – Tvarkovski
MEDIUM NEUTRAL CITATION:	[2013] VCC 929

REASONS FOR RULING

Practice and Procedure: whether plaintiff should be permitted to join defendant against background of delay in bringing the case to trial.

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr I. Upjohn	Webb Korfiatis Commercial
For the Defendant	Mr M. Lapirow	Davies Moloney

HER HONOUR:

1       This is the return of the plaintiff’s  summons filed 19 July 2013 wherein orders are sought that Mr Saar Sold be joined as the second defendant to this proceeding. 

2       The case relates to an amount of $800,000 transferred by the plaintiff to the defendant in July 2011. The plaintiff says the monies were transferred to be used by the defendant to pay for a deposit in respect of a purchase of a property at Port Douglas. The plaintiff says the purchase could not proceed and the defendant refused to repay the $800,000. The defendant says the $800,000 was paid pursuant to an existing obligation the plaintiff had to Mr Saar Sold (the defendant now sought to be joined).

3       There are two main issues for me to resolve this morning.  Firstly, whether it is appropriate generally for Mr Saar Sold to be joined; and, secondly, whether I should exercise my discretion to permit this to occur given the history of this matter, and given that the joinder will mean that the trial listed for Monday, 12 August 2013, will be vacated.

4       Dealing then with each of these matters in turn.

5       Firstly, it is apparent from the material (including from the defence filed back on 20 December 2011),[1] that it is appropriate for Mr Sold to be joined. Thus, given the  funds the subject of the claim were paid into an account in the name of Mr Sold, the plaintiff appears to have potential causes of action based on Barnes v Addy,[2] Quistclose Trust and a mistake.

[1]See, in particular, para 6(c).

[2](1874) LR 9 Ch App 244.

6       It is however the second matter which is really critical, since, as Mr Upjohn (Counsel for the plaintiff) sensibly conceded, the defence should have alerted the plaintiff to the desirability of Mr Sold being joined.

7       The defendant further highlighted the following: that there had been three previous adjournments in this matter; that the explanation for the joinder at this late stage is deficient; that this application was part of a “pattern” of the plaintiff not bringing this matter to trial; that memories of witnesses could fade; and, finally, that the flavour of the written ruling of His Honour Judge Anderson in February of this year was that the plaintiff was to be given only “one last chance”.

8       I have given these matters careful consideration. I accept that the explanation for this late joinder is deficient. It also appears that the plaintiff is largely responsible for two previous adjournments (the third adjournment may also be attributable, in part, to the defendant, given he was also able to pay the setting down fee). His Honour Judge Anderson was also highly critical of the plaintiff’s conduct in the proceeding (although he did in fact grant the adjournment).[3]  Finally, as a general matter, memories may also fade and it is always desirable to bring matters to trial expeditiously as an ordinary incident of case management.[4] 

[3][2012] VCC 125.

[4]See Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.

9       Against this, I do not accept that this application is part of  any “pattern” to delay the trial.  In particular, I accept that this application was brought for the reason that it purports to be brought; that is, to join Mr Sold as a defendant. To dismiss this application would also bring about a very high degree of prejudice to the plaintiff.  I am also satisfied that that prejudice would be much greater as compared with that of the defendant. 

10      The other matter of significance is the need to avoid fragmentation and inconsistent findings. Thus, the issues between the plaintiff and Mr Sold are inextricably linked to the matters and events the subject of the existing proceeding.

11      This court is also in the position to offer trials within six months and can relist this trial in early 2014.

12      The plaintiff has also conceded that the consequent vacation of the trial should only be done on the basis that costs are paid on an indemnity basis. 

13      Having regard to all these matters, I am therefore satisfied that it is appropriate to allow the joinder and to vacate the trial on the basis that the plaintiff pay the defendant’s  indemnity costs thrown away by reason of such vacation.