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Feiglin v Ainsworth (No 2)

Feiglin v Ainsworth (No 2)

Case [2014] VSC 376 20 August 2014

Appeal

Limitation Periods

Summary Judgment

Civil Litigation & Procedure

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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

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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

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PRACTICE AND PROCEDURE – Appeal against summary judgment – Judgment for 1^st 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.

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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

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 1^st defendant, David Sargon Ainsworth (“Ainsworth”) in relation to some of the claims made against Ainsworth.
[1]Feiglin v Ainsworth (No 2) [2013] VSC 83.

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.

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 2^nd 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].

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

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 Feiglin v Ainsworth (No 2)

Details

AGLC: Feiglin v Ainsworth (No 2) [2014] VSC 376
Case: [2014] VSC 376
Decision Date: 20 AUGUST 2014

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