Elovalis v Elovalis
[2008] WASCA 141 (S)
ELOVALIS -v- ELOVALIS [2008] WASCA 141 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 141 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:38/2007 | 6 MARCH 2008 | |
| Coram: | MARTIN CJ BUSS JA NEWNES AJA | 4/07/08 | |
| 19/09/08 | |||
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Judgment entered in favour of the second respondent should not be allowed to stand Costs of the appeal follow the event | ||
| B | |||
| PDF Version |
| Parties: | HELEN ELOVALIS VICKI MICHELE TOT ANASTASIOS VASILIOS ELOVALIS as Trustee of Mike's Gardening Trust CHRISTOS VASILIOS ELOVALIS |
Catchwords: | Trusts Appointor joined as defendant Necessary to ensure that all matters in dispute are effectually and completely determined Rules of the Supreme Court 1971 (WA), O 18 r 6(2) Costs Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA), O 18, r 4, r 6 |
Case References: | APT Finance Pty Ltd v Bajada [2008] WASCA 73 Bridge Shipping Pty Ltd v Grond Shipping SA (1991) 173 CLR 231 Elovalis v Elovalis [2008] WASCA 141 McInnes v Wincarribee Shire Council (1987) 10 NSWLR 660 Qantas Airways Ltd v AF Little Pty Ltd [1981] 2 NSWLR 34 Vagliriello v Vagliriello [2003] WASC 61 Woodlings v Stevenson [2001] WASC 174; (2001) 24 WAR 221 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ELOVALIS -v- ELOVALIS [2008] WASCA 141 (S) CORAM : MARTIN CJ
- BUSS JA
NEWNES AJA
DECISION : 19 SEPTEMBER 2008 FILE NO/S : CACV 38 of 2007 BETWEEN : HELEN ELOVALIS
- VICKI MICHELE TOT
Appellants
AND
ANASTASIOS VASILIOS ELOVALIS as Trustee of Mike's Gardening Trust
First Respondent
CHRISTOS VASILIOS ELOVALIS
Second Respondent
(Page 2)
ON APPEAL FROM:
For File No : CACV 38 of 2007
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER SANDERSON
Citation : ELOVALIS & ANOR -v- ANASTASIOS VASILIOS ELOVALIS AS TRUSTEE OF MIKE'S GARDENING TRUST & ANOR [2006] WASC 291
File No : CIV 2056 of 2004
Catchwords:
Trusts - Appointor joined as defendant - Necessary to ensure that all matters in dispute are effectually and completely determined - Rules of the Supreme Court 1971 (WA), O 18 r 6(2)
Costs - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 18, r 4, r 6
Result:
Judgment entered in favour of the second respondent should not be allowed to stand
Costs of the appeal follow the event
Category: B
(Page 3)
Representation:
Counsel:
Appellants : Mr S Penglis
First Respondent : Mr T Lampropoulos SC
Second Respondent : Mr T Lampropoulos SC
Solicitors:
Appellants : Freehills
First Respondent : Ilberys Lawyers
Second Respondent : Ilberys Lawyers
Case(s) referred to in judgment(s):
APT Finance Pty Ltd v Bajada [2008] WASCA 73
Bridge Shipping Pty Ltd v Grond Shipping SA (1991) 173 CLR 231
Elovalis v Elovalis [2008] WASCA 141
McInnes v Wincarribee Shire Council (1987) 10 NSWLR 660
Qantas Airways Ltd v AF Little Pty Ltd [1981] 2 NSWLR 34
Vagliriello v Vagliriello [2003] WASC 61
Woodlings v Stevenson [2001] WASC 174; (2001) 24 WAR 221
(Page 4)
1 JUDGMENT OF THE COURT: On 4 July 2008 the court published its reasons for decision on the substantive appeal, and made orders allowing the appeal and setting aside the orders made by the Master insofar as they related to the first respondent to the appeal (Steve Elovalis). With respect to costs the court ordered that the costs of the application for summary judgment made by each of the respondents be costs in the cause of the action, and further ordered that the respondents repay any amounts paid by the appellants to the respondents pursuant to orders made by the Master, including (in particular) the orders made by the Master with respect to costs, together with interest at 6% per annum. At the time of publication of the court's reasons for decision, counsel for the second respondent (Chris Elovalis) asserted that the reasons which were to be published by the court did not sustain the conclusion that the order made by the Master entering judgment in favour of the second respondent should be set aside. There was also disagreement between the parties with respect to the appropriate orders to be made in relation to the costs of the appeal. Accordingly, directions were made for the exchange of written submissions dealing with:
(a) the question of whether the judgment entered in favour of the second respondent should be set aside; and
(b) the costs of the appeal.
It was further ordered that those issues would be resolved by the court on the papers. These reasons provide the decision of the court on those issues.
The judgment against the second respondent
2 The history of the proceedings, and the position of the second respondent in those proceedings, are canvassed in the reasons previously published: Elovalis v Elovalis [2008] WASCA 141. In summary, after the proceedings were commenced against the original trustee of the trust, Mike's Nominees Pty Ltd, the second respondent exercised his powers as appointor of the Trust to remove the trustee and to appoint the first respondent as trustee. The respondents were then substituted as defendants to the proceedings and directions were made for the filing of pleadings. In the statement of claim filed pursuant to those directions, the appellants sought relief in the form of removal of the first respondent as trustee of the trust, and the appointment of a new trustee. No cause of action was specifically pleaded against the second respondent, nor any relief specifically sought against him. In that regard, the Master observed in his reasons for the judgment under appeal [3]:
(Page 5)
- No orders are sought against the second defendant. Whatever else is done in these proceedings, the action against the second defendant ought be terminated.
3 Neither the appellants nor the respondents specifically addressed the arguably separate position of the second respondent in either their oral or written submissions on appeal. Therefore, this issue was not addressed in the reasons previously published by the court. However, at the time of the judgment the second respondent submitted that the position adopted by the Master in relation to his separate position was correct, and that the judgment in his favour should be upheld.
4 There are a number of different reasons justifying joinder of a person as a defendant to proceedings. The most common is that a cause of action, and some relief, is asserted as against that person. However, a person can also be joined as a defendant where no cause of action or relief is asserted as against them, because, for example, they are a party who would have been jointly entitled to the relief sought by the plaintiff but who does not consent to being joined as a plaintiff (Rules of the Supreme Court 1971 (WA), O 18 r 4(2)). Similarly, under the Rules of the Supreme Court O 18 r 6(2):
At any stage of the proceedings … on such terms as it thinks just and either of its own motion or an application … [the Court may] … order that any person … whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, be added as a party.
5 Contrary to the view apparently taken by the Master, the question of whether the second respondent should remain a party to the proceedings cannot necessarily be answered exclusively by reference to the observation that no relief is sought against him. If the second respondent is a person whose presence before the court is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon, it is appropriate that judgment not be entered in his favour, and that he remain a party.
6 The phrase 'necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined' should be given a beneficial interpretation; affording to it the widest interpretation its language will permit (Woodlings v Stevenson [2001] WASC 174; (2001) 24 WAR 221 [25]; also see APT Finance Pty Ltd v Bajada [2008] WASCA 73 [34]). In general, O 18 r 6(2) is designed to avoid unnecessary technicality so as to enable parties to litigate the real issues between them in an expeditious, effective and cost effective way
(Page 6)
- (APT Finance Pty Ltd [34]); also see McInnes v Wincarribee Shire Council (1987) 10 NSWLR 660, 668 and Bridge Shipping Pty Ltd v Grond Shipping SA (1991) 173 CLR 231, 260 - 261.
7 Further, the expression 'all matters in dispute' has been held to have an elastic application. In Qantas Airways Ltd v AF Little Pty Ltd [1981] 2 NSWLR 34, 38 it was held that the phrase 'all matters in dispute in the proceedings' in a similar provision in the Rules of the Supreme Court 1970 (NSW), should not be construed as limited to matters arising on the existing pleadings. It may also properly include those disputed issues of fact which are subjacent to the proceedings.
8 In our opinion the presence of the second respondent in these proceedings is necessary to ensure that all matters in dispute are effectually and completely determined. The action of the second respondent, in appointing the first respondent (his brother) as trustee of the Trust gave rise to the proceedings in their current form. The appellants allege that the first respondent has conferred substantial benefits upon the second respondent out of the trust property, and has made statements which suggest that the respondents have colluded with respect to the exercise of the trustee's powers in such a way as will confer a substantial benefit upon the second respondent to the detriment of the appellant's interests as beneficiaries in the Trust. The appellants assert that this conduct justifies the exercise of the court's remedial power to remove the first respondent as trustee of the Trust. If the court was to remove the first respondent as trustee and appoint another trustee this would arguably affect the second respondent's role as appointor. In Vagliriello v Vagliriello [2003] WASC 61 [61] Barker J held that, 'it is not open to the appointor to purport thereafter to remove the court-appointed trustee'.
9 For these reasons the second respondent has a sufficient connection to the matters the subject of these proceedings, and interest in their resolution, to make his presence necessary to ensure the effectual and complete determination of the matters in dispute.
10 Accordingly, because in our opinion the Master erred in concluding that the fact that no relief was currently sought against the second respondent was sufficient, of itself, to justify judgment being entered in his favour, we would allow the appeal insofar as it relates to that judgment, and set it aside.
(Page 7)
Costs
11 In their written submissions the parties have dealt with two issues related to the costs of the proceedings. The first concerns the orders made at the time of publication of the reasons of this Court, to the effect that the respondents repay all amounts paid to them pursuant to costs orders made by the Master. With respect to this the second respondent asserts that the order should be modified to exclude him from its operation, because the judgment entered in his favour should be allowed to stand. As we have concluded that the judgment entered in favour of the second respondent should not be allowed to stand, that assertion falls away.
12 The second issue raised concerns the costs of the appeal. The respondents assert that instead of costs following the event, they should be reserved, because the appeal was won on grounds that were not argued before the Master. That assertion is not correct. The written submissions filed by the appellants in opposition to the application for summary judgment make it clear that the appellants were relying upon the broad jurisdiction of the court to remove a trustee on the grounds of expedience. Accordingly, there is no sound reason for departing from the ordinary rule to the effect that costs of the appeal should follow the event, and the respondents should be ordered to pay the appellants costs of the appeal to be taxed.
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