Feiglin v Ainsworth

[2015] VSCA 326

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2014 0105

ESTHER CELIA FEIGLIN	Applicant
v
DAVID SARGON AINSWORTH	Respondent

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JUDGES:	TATE, OSBORN and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 November 2015
DATE OF JUDGMENT:	7 December 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 326
JUDGMENT APPEALED FROM:	[2014] VSC 376 (Elliott J)

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PRACTICE AND PROCEDURE – Application for leave to rely upon amended pleading – Whether new cause of action pleaded – Whether pleading implied or imputed trust substantively departs from pleading constructive trust – Application refused.

PRACTICE AND PROCEDURE – Application for leave to appeal against summary judgment – Judgment on certain claims – Claims statute-barred – Allegation of institutional constructive trust – Whether sufficient factual basis to establish trust – Limitation of Actions Act 1958 ss 5(2) and (8), 22(1)(b), 27 – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R C Macaw QC with Mr M D Tehan	Barry B Moshel
For the Respondent	Mr S Stuckey	Dimos Lawyers

TATE JA:

1. I have had the advantage of reading, in draft form, the reasons of McLeish JA.  I agree, for the reasons his Honour gives, that leave to appeal should be refused.

1. As McLeish JA observes, a very considerable period has elapsed since the commencement of this proceeding.  This is regrettable.  It is also regrettable that such a dispute has arisen between a daughter, the applicant, and her father, the respondent, especially given that the respondent is now of considerable age.   The refusal of leave to appeal should serve to fix the scope of the proceeding.   It is to be hoped that the parties may now seek to resolve their dispute, perhaps through mediation, but failing that, through a swift path towards trial.

OSBORN JA:

1. I agree with McLeish JA, for the reasons that his Honour gives, that leave should be refused.

McLEISH JA:

1. In the course of a regrettably long-running proceeding, an associate judge ordered that there be judgment for the first defendant in relation to certain of the plaintiffs’ claims on the basis that they were statute-barred.  That judgment was upheld by a judge in the Trial Division on 20 August 2014.  One of the unsuccessful plaintiffs now seeks leave to appeal.  For the reasons that follow, leave should be refused.

1. The proceeding was commenced on 15 June 2010.  Originally, the plaintiffs (the present applicant and her husband, Mr Mark Feiglin) sued the first defendant (the present respondent) and others seeking the imposition of a resulting or constructive trust over real property of which the defendants were at various times the registered proprietors, and upon which the applicant and Mr Feiglin resided.  In May 2011, the applicant and Mr Feiglin sought leave to introduce an additional claim, which is the

subject of the proposed appeal.  By that claim, the applicant and Mr Feiglin alleged an agreement made in 1985 between the respondent, who operated a consultancy business, and Mr Feiglin by which Mr Feiglin agreed…