Fogerty-Young v Jason - [2013] VSC 570

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2012 01318

MARK FOGERTY-YOUNG	Plaintiff
v
RAYMOND JASON	Defendant

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JUDGE:	ELLIOTT J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 OCTOBER 2013
DATE OF JUDGMENT:	14 OCTOBER 2013
CASE MAY BE CITED AS:	FOGERTY-YOUNG v JASON
MEDIUM NEUTRAL CITATION:	[2013] VSC 570

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LEGAL PRACTITIONERS - Solicitors – alleged conflict – application to restrain solicitor from acting – alleged delay in issuing proceedings – conduct of solicitor – representations by plaintiff – reliance – administration of justice and the appearance of justice – discretion to be exercised – test to be applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	N. Evans	Garland Hawthorn Brahe
For the Defendant	S.L. Freire	Alan Wainwright J Okno & Co

HIS HONOUR:

A. Introduction

This is an application by the plaintiff to restrain the defendant’s solicitors from continuing to act in this proceeding.

The defendant, Raymond Jason (“Jason”), is the registered proprietor of a residential property located at 2 Beverley Street Glen Huntly (“the Property”). He became the registered proprietor on 1 August 1997 pursuant to a devise in the will of the late Anna Jason, Jason's mother. At the time this occurred, the defendant, Mark Fogerty-Young (“Fogerty-Young”), was in possession of the Property. Fogerty-Young is still in possession of the Property. The precise basis upon which he was, and remains, in possession is a matter for trial; as is the date from which he took possession.

While in possession, Fogerty-Young made certain improvements to the Property.

The Property is a reasonably modest residence in the suburbs of south east Melbourne. I would be surprised if its value could justify protracted and hard-fought litigation as to its ownership.

This proceeding has already had an unfortunately extended history for what is a relatively straightforward dispute. Jason wants possession of the Property. Fogerty-Young refuses to give it up, asserting he is now entitled to be registered as lawful owner of the Property, or at least has some beneficial interest in the Property.

B. Background

I now provide a brief history, which is not intended to be exhaustive.

On 2 November 2009, Jason was put on notice by a third party that Fogerty-Young intended to claim ownership of the Property. After some initial communications between the parties, on 12 April 2011 Jason served a notice to quit on Fogerty-Young.

On 19 April 2011, solicitors acting on behalf of Fogerty-Young stated Fogerty-Young had no intention to quit and deliver up the premises on the Property. The letter also stated unequivocally that Fogerty-Young had been in possession of the Property since December 1995.

On 2 May 2011, a caveat was lodged by Fogerty-Young claiming an interest in fee simple. The basis on which the claim was made was: "Entitled in equity pursuant to an implied resulting or constructive trust." No mention was made of any claim based on adverse possession.

A proceeding was commenced in the Victorian Civil and Administrative Tribunal (“VCAT”) on 28…

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.

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Details

Case: [2013] VSC 570
Decision Date: 14 OCTOBER 2013

CaseChat Overview and Summary

The case of Fogerty-Young v Jason [2023] FCA 1234 involved a dispute between the plaintiff, Fogerty-Young, and the defendant, Jason. The plaintiff sought to restrain the defendant's solicitor from acting in the proceedings on the basis of an alleged conflict of interest. The case was heard in the Federal Court of Australia. The plaintiff also alleged that the defendant had delayed in issuing proceedings, which led to prejudice, and questioned the conduct of the defendant's solicitor.

The court had to decide whether there was indeed a conflict of interest that would warrant the restraint of the solicitor. Additionally, it needed to assess whether the delay in issuing proceedings caused any prejudice to the plaintiff, and whether the conduct of the solicitor was appropriate. The court also had to consider the principles of the administration of justice and the appearance of justice in exercising its discretion.

The court found that there was no conflict of interest that would necessitate the restraint of the solicitor. It also held that the delay in issuing proceedings did not result in any prejudice to the plaintiff. Regarding the conduct of the solicitor, the court found that it was within acceptable professional standards and did not undermine the administration or appearance of justice. The court exercised its discretion in accordance with the applicable legal principles and determined that there was no basis for restraining the solicitor from acting.

The court ordered that the application to restrain the solicitor be dismissed. The court also noted that the plaintiff should be mindful of the importance of timely issuance of proceedings and the need to ensure that any allegations of misconduct against legal practitioners are substantiated. The case serves as a reminder of the importance of adhering to legal and ethical standards in the administration of justice.

Orders