Garlick v Kerbaj (No 4) - [2023] VSC 609

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S ECI 2020 02573

BETWEEN:

DARRYN GARLICK (as representative of the estate of JACK JOHN ERMAN)	Plaintiff
v
DANIEL KERBAJ & ORS (according to the attached Schedule)	Defendants

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	11 October 2023
DATE OF JUDGMENT:	18 October 2023
CASE MAY BE CITED AS:	Garlick v Kerbaj & Ors (No 4)
MEDIUM NEUTRAL CITATION:	[2023] VSC 609

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PRACTICE AND PROCEDURE — Interpleader proceeding — Application by a party to be joined as a defendant to the proceeding under r 9.06 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) to make a claim upon funds held in Court — Whether applicant is a necessary or proper party — Whether applicant has a tenable claim to the fund — Summary judgment principles apply to determination of the application — Applicant has no viable claim to fund — Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No appearance for the plaintiff
For the First Defendant	Mr S Clement of counsel for the first defendant.	EC Legal
For Argyle Lending Pty Ltd	Mr M Thomas of counsel for Argyle Lending Pty Ltd	TLM Law

HER HONOUR:

Introduction and background

This proceeding commenced as an urgent caveat removal application in the Practice Court issued in June 2020, which was resolved on the basis of an agreement that part of the proceeds of sale of the relevant property be paid into Court. The funds paid into Court were subsequently supplemented by a further payment into Court in 2022, in circumstances explained further later in these reasons. The total sum of money in Court (‘fund’) is estimated to be approximately $600,000, perhaps a little less. The outstanding issue in this proceeding is who is entitled to be paid from the fund.

On about 4 July 2011, Mr Jack John Erman became the sole registered proprietor of a property situated at Unit 4, 204 The Boulevard, Ivanhoe East, Victoria (‘property’). Mr Erman lived at the property with his partner, Ms Marzelle Cohen. In the years prior to the sale of the property, Mr Erman, who worked in the finance industry, undertook extensive renovations to the property. He took out loans from various parties to fund the renovations, which were facilitated by Argyle Lending Pty Ltd (‘Argyle Lending’). And, while this is in dispute, he also borrowed funds from a man who was a close friend of his and Ms Cohen, Mr Daniel Kerbaj, a businessman with interests in the waste management and automobile repair industries.

By a contract of sale dated 6 May 2020, Mr Erman sold the property, with settlement due to occur on 22 June 2020. As at 6 May 2020, there were four caveats registered on the title to the property:

(a) caveat number AS229383B registered by Ms Cohen on 5 June 2019;[1]
[1]It seems that Ms Cohen no longer presses any claim upon the fund in this…

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 Garlick v Kerbaj (No 4)

Details

AGLC: Garlick v Kerbaj (No 4) [2023] VSC 609
Case: [2023] VSC 609
Decision Date: 18 October 2023

CaseChat Overview and Summary

In the case of Garlick v Kerbaj, the applicant, Garlick, sought to be joined as a defendant in an interpleader proceeding in the Supreme Court of Victoria. The dispute involved funds held by the Court, and the application was made under rule 9.06 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). The core issue before the Court was whether Garlick was a necessary or proper party to the proceeding and if they had a tenable claim to the funds held by the Court. The Court was required to determine whether the applicant had a viable claim and, if so, whether they should be joined as a party to the proceeding.

The Court approached the matter by applying the principles of summary judgment to assess the applicant's claim. It considered whether there were any triable issues of fact or law that would prevent the Court from making a determination on the application. The Court found that the applicant did not have a tenable claim to the funds held by the Court, as there were no genuine issues of fact or law that would support their claim. Consequently, the Court concluded that the applicant was neither a necessary nor a proper party to the proceeding, and their application to be joined as a defendant was refused.

The Court's decision was based on the lack of a viable claim by the applicant. The Court held that the applicant's application was not supported by any evidence or legal basis that would warrant their inclusion as a party in the proceeding. The Court found that the applicant had failed to demonstrate a sufficient connection to the funds or the matters in dispute, and therefore, their application was dismissed.

In summary, the Supreme Court of Victoria dismissed Garlick's application to be joined as a defendant in the interpleader proceeding. The Court found that the applicant did not have a tenable claim to the funds held by the Court and was not a necessary or proper party to the proceeding. The Court's decision was based on the lack of genuine issues of fact or law that would support the applicant's claim, and the application was refused accordingly.

Orders