Feiglin v Ainsworth (No 2)

Case [2014] VSC 376


IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2010 3265

ESTHER CELIA FEIGLIN Appellant
v
DAVID SARGON AINSWORTH Respondent

---

JUDGE:

ELLIOTT J

WHERE HELD:

MELBOURNE

DATE OF HEARING:

9 JULY 2014

DATE OF JUDGMENT:

20 AUGUST 2014

CASE MAY BE CITED AS:

FEIGLIN v AINSWORTH (No 2)

MEDIUM NEUTRAL CITATION:

[2014] VSC 376

---

PRACTICE AND PROCEDURE – Appeal against summary judgment – Judgment for 1st defendant on some of claims made – Claims time barred – Constructive trust alleged – No institutional constructive trust – Time limits applicable to claims for an account – Fraudulent concealment – Elements of cause of action known to claimant from approximately mid 1990s – No postponement of limitation periods beyond this time – Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 77.06 - Limitation of Actions Act 1958 (Vic), ss 5(2) and (8), 21(1)(b), 27; Civil Procedure Act 2010 (Vic), ss 63, 64.

---

APPEARANCES:

Counsel Solicitors
For the Appellant Dr J F Bleechmore Behan Legal
For the Respondent Mr S Stuckey Dimos Lawyers

TABLE OF CONTENTS

A.. Introduction................................................................................................................................... 1

B.. Procedural history........................................................................................................................ 1

C.. Approach on appeal where summary judgment ordered by an associate judge............. 7

D.. Grounds of appeal....................................................................................................................... 9

E... Feiglin v Ainsworth [2011] VSC 454........................................................................................ 10

F... Institutional constructive trust................................................................................................. 14

G.. Allegations of fraudulent concealment for the purpose of postponement of limitation periods     21

H.. Conclusion................................................................................................................................... 27

HIS HONOUR:

A.       Introduction

  1. This is an appeal by the plaintiff, Esther Celia Feiglin (“Feiglin”) from a judgment of an associate judge (“the Primary Judgment”)[1] ordering judgment in favour of the 1st defendant, David Sargon Ainsworth (“Ainsworth”) in relation to some of the claims made against Ainsworth.  

  1. The claims the subject of the Primary Judgment (“the Claims”)[2] relate to an agreement struck between Ainsworth and the husband of Feiglin (“the Husband”) in the mid 1980s (“the Commission Agreement”). The outcome of the appeal concerns the proper construction of ss 21(1)(b) and 27 of the Limitation of Actions Act 1958 (Vic), and the application of those provisions to the facts of the case as pleaded by Feiglin.

    [2]“The Claims” is a reference to the claims the subject of the pleadings before the associate judge and, where applicable, the claims the subject of the proposed pleading relied upon on the appeal:  see par 17 below.

  1. Feiglin seeks to prosecute the Claims as assignee of the causes of action founding the Claims.  Those causes of action were assigned to Feiglin by the trustee in bankruptcy for the Husband on 1 August 2013.[3]  At the time of the hearing before the associate judge, the Husband was the 2nd plaintiff and was seeking to prosecute the Claims in his own right.

    [3]For further details in relation to matters relating to the assignment, see:  Feiglin v Ainsworth [2014] VSC 233, [16].

  1. The Primary Judgment was given on the basis that the Claims…

Continue reading Feiglin v Ainsworth (No 2)

Sign in free to access the full text

Details
AGLC
Feiglin v Ainsworth (No 2) [2014] VSC 376
Case
[2014] VSC 376
Decision Date

CaseChat Overview and Summary

The case of Feiglin v Ainsworth (No 2) involved the plaintiff, Feiglin, seeking to appeal a summary judgment awarded to the first defendant, Ainsworth. The appeal pertained to claims made by the plaintiff against the first defendant, with the court ruling in favour of the defendant on some of the claims due to the plaintiff's failure to establish a valid cause of action within the prescribed limitation period. The plaintiff had alleged the imposition of a constructive trust and sought an account, but the court found that there was no institutional constructive trust and that the time limits applicable to claims for an account had expired. The court also rejected the plaintiff's argument that fraudulent concealment by the first defendant had postponed the limitation periods.

The primary legal issues in this case revolved around the applicability of the Limitation of Actions Act 1958 (Vic) and the Supreme Court (General Civil Procedure) Rules 2005 (Vic) to the plaintiff's claims. The court was required to determine whether the plaintiff's claims were time-barred and if fraudulent concealment could have postponed the limitation periods. Additionally, the court needed to examine the nature of the constructive trust claimed by the plaintiff and whether it was subject to statutory limitation periods.

The court held that the plaintiff's claims were indeed time-barred, as the limitation periods had expired, and there was no institutional constructive trust. The court found that the plaintiff was aware of the elements necessary to establish the cause of action from approximately the mid-1990s, and there was no evidence of fraudulent concealment that would have postponed the limitation periods. The court further clarified that the Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 77.06, applied to the court's discretion in determining whether to extend the limitation periods. However, given the lack of fraudulent concealment, the court found no basis to exercise this discretion in favour of the plaintiff.

The court dismissed the appeal and upheld the summary judgment in favour of the first defendant. The plaintiff's claims for a constructive trust, an account, and damages were dismissed on the grounds of limitation and lack of a valid cause of action. The court's decision was based on the applicable limitation periods and the absence of fraudulent concealment that could have postponed these periods.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.