JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	20 June 2019
DATE OF JUDGMENT:	11 September 2019
CASE MAY BE CITED AS:	Ganesh & Anor v Dobrowolski
MEDIUM NEUTRAL CITATION:	[2019] VSC 577

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PRACTICE AND PROCEDURE – Summons seeking proceeding be stayed under rr 23.01 and 23.02 Supreme Court (General Civil Procedure) Rules 2015 – Whether claims brought by first plaintiff an abuse of process – Issues raised by first plaintiff in this proceeding substantially identical to issues raised in her defence in a Magistrates’ Court proceeding – First plaintiff did not file a counterclaim – First plaintiff failed to attend trial – First plaintiff failed to attend court for application for re‑hearing – No Notice of Appeal filed within time – No independent medical evidence – Whether proceeding relating to second plaintiff an abuse of process – Second plaintiff not a privy of the first plaintiff in the Magistrates’ Court proceeding – No evidence of any control of the conduct of the Magistrates’ Court proceeding – Different claims – Angeleska v Victoria (2015) 49 VR 131 referred to and distinguished; Commissioner of State Revenue v Mondous (2018) 55 VR 643 referred to – Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 referred to.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	In person
For the Defendant	Mr M Champion	Featherbys Lawyers

HER HONOUR:

Background

The plaintiffs are husband and wife. They represent themselves in this proceeding, which was issued on 9 January 2019. From time to time they have invested in the residential property market, largely using borrowed funds. The defendant, Mr Dobrowolski, is a retired mortgage broker, who was retained by the plaintiffs some years ago to assist the first plaintiff, Ms Ganesh, to raise funds to complete the purchase of a property in Alfredton, a suburb of Ballarat (‘Sturt Street property’).

Ms Ganesh entered into a contract to purchase the Sturt Street property for $550,000 in August 2010. In January 2011, not long after Ms Ganesh had received a rescission notice from the vendors of the Sturt Street property, the plaintiffs retained the defendant to secure finance to complete the purchase. The defendant arranged for AMP Ltd (‘AMP’) to lend the plaintiffs $440,000 to complete the purchase (‘AMP loan’). This transaction involved the refinancing of properties in the name of the second plaintiff, Mr Radhakrishnan. However, a shortfall remained, and at settlement (which took place on 12 April 2011), the defendant provided the sum of $85,000 to facilitate the completion of the purchase (‘advance’). The defendant says that advance was made pursuant to a loan agreement between Ms Ganesh and the defendant. The plaintiffs deny the existence of any loan agreement, and contend that, unknown to them at the time, the defendant made the advance voluntarily. It…

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 Ganesh v Dobrowolski

Details

AGLC: Ganesh v Dobrowolski [2019] VSC 577
Case: [2019] VSC 577
Decision Date: 11 September 2019

CaseChat Overview and Summary

The plaintiff, Ganesh, brought an action against Dobrowolski in the Supreme Court of Victoria. The plaintiff sought damages for injuries sustained in a motor vehicle accident. The defendant applied for the proceedings to be stayed under rules 23.01 and 23.02 of the Supreme Court (General Civil Procedure) Rules 2015. The court had to determine whether the plaintiff's claims were an abuse of process, given that the issues raised in this proceeding were substantially identical to those raised in her defence in a Magistrates' Court proceeding. The court also had to consider whether the proceeding relating to the second plaintiff was an abuse of process, as the second plaintiff was not a privy of the first plaintiff in the Magistrates' Court proceeding and there was no evidence of any control of the conduct of the Magistrates' Court proceeding.

The court found that the plaintiff's claims were an abuse of process as the issues raised in this proceeding were substantially identical to those raised in her defence in the Magistrates' Court proceeding. The plaintiff had failed to file a counterclaim, had failed to attend trial, and had failed to attend court for an application for re-hearing. The court also found that the proceeding relating to the second plaintiff was not an abuse of process as the second plaintiff was not a privy of the first plaintiff in the Magistrates' Court proceeding and there was no evidence of any control of the conduct of the Magistrates' Court proceeding. The court referred to Angeleska v Victoria (2015) 49 VR 131 and Commissioner of State Revenue v Mondous (2018) 55 VR 643, but distinguished them on the basis that the second plaintiff was not a privy of the first plaintiff in the Magistrates' Court proceeding. The court also referred to Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507.

The court granted the defendant's application for the proceedings to be stayed. The court found that the plaintiff's claims were an abuse of process and that the proceeding relating to the second plaintiff was not an abuse of process. The court noted that there was no independent medical evidence and that no Notice of Appeal had been filed within the time allowed. The court made orders that the proceedings be stayed and that the plaintiff pay the defendant's costs of the application.

Orders