| 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…
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- AGLC
- Garlick v Kerbaj (No 4) [2023] VSC 609
- Case
- [2023] VSC 609
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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