Garlick v Kerbaj (No 5) - [2024] VSC 614

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S ECI 2020 02573

DARRYN GARLICK (as representative of the Estate of Jack John Erman)	Plaintiff
v
DANIEL KERBAJ and ORS (according to the attached Schedule)	Defendants

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 June 2024
DATE OF JUDGMENT:	8 October 2024
CASE MAY BE CITED AS:	Garlick v Kerbaj (No 5)
MEDIUM NEUTRAL CITATION:	[2024] VSC 614

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PRACTICE AND PROCEDURE – Joinder application to enable applicant to claim on funds in court – Whether applicant is a necessary party to proceeding – Whether there was a question just and convenient to determine between the applicant and other parties – Supreme Court (General Civil Procedure) Rules 2015 rr 1.13(1), 9.06, 9.07.

APPEAL – Associate Justice’s decision dismissing joinder application – Whether wrong test for joinder applied – Finding that applicant had not established a discernible cause of action entitling it to claim on the Fund – No error by Associate Justice – Appeal dismissed.

AGENCY – Whether agent can sue in own name to recover money loaned by principals.

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APPEARANCES:	Counsel	Solicitors
For the Applicant (Argyle Lending Pty Ltd)	Mr M Thomas	TLM Law
For the First Defendant	Mr S Clement	E C Legal
For the Fifth Defendant	Mr M Szary	MGA Lawyers

HIS HONOUR:

On 18 October 2023, Associate Justice Daly dismissed a summons by Argyle Lending Pty Ltd (‘Argyle’) seeking to be joined as a party to this proceeding and ordered it to pay the first defendant’s costs of the application.[1]
[1]Garlick v Kerbaj (No 4) [2023] VSC 609 (‘Reasons’). References in this judgment to the Associate Justice are to Daly AsJ unless otherwise stated.

Argyle’s summons also sought that orders it be paid the amount of $194,330.36, which it described as the overpayment which Matthews AsJ had ordered to be repaid to the Supreme Court Fund (‘the overpayment’).

Argyle was a loan facilitator, or broker and Ms Jane Lennon was its director.

The proceeding now concerns claims to the Funds in Court, (‘the Fund’) which are the proceeds of the sale of a unit by the late Jack John Erman and which now exceed $558,000. The amount of $363,742.73 was paid into Court on 23 June 2020 and a further $194,330.36 was paid into Court pursuant to the orders of Matthews AsJ of 24 June 2022 to await the outcome of this proceeding.[2]
[2]Garlick v Kerbaj [2022] VSC 336 at [7].

Mr Erman died on 20 March 2022. Mr Darryn Garlick, the plaintiff, who is the representative of Mr Erman’s estate, did not participate in the joinder application. The Associate Justice inferred that Mr Garlick did not expect that any part of the Fund would be paid to Mr Erman’s estate once all claims by secured creditors had been met.[3]
[3]Reasons [26].

The ultimate issues in the proceeding are: first, whether each remaining defendant has a…

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 5)

Details

AGLC: Garlick v Kerbaj (No 5) [2024] VSC 614
Case: [2024] VSC 614
Decision Date: 8 October 2024

CaseChat Overview and Summary

The case of Garlick v Kerbaj (No 5) arose in the Supreme Court of New South Wales and involved an application to join a party to proceedings to enable a claim on funds in court. The applicant, Garlick, sought to join as a party to the proceedings to claim on funds held by the court, which were derived from a property sold by the defendant, Kerbaj. The legal issues in the case centred around whether Garlick was a necessary party to the proceeding, and whether there was a question just and convenient to determine between Garlick and other parties, under the Supreme Court (General Civil Procedure) Rules 2015.

The court had to determine whether the applicant had established a discernible cause of action entitling it to claim on the funds. The Associate Justice dismissed the joinder application, finding that Garlick had not demonstrated a sufficient basis for claiming on the funds. The applicant appealed the decision, arguing that the Associate Justice had applied the wrong test for joinder. However, the appeal was dismissed as the court found no error in the Associate Justice's decision. The court held that the applicant had not established a discernible cause of action entitling it to claim on the funds.

The case also touched upon the issue of whether an agent could sue in its own name to recover money loaned by its principals. The court found that the applicant did not have a valid cause of action and therefore could not claim on the funds. The appeal was dismissed, and the decision of the Associate Justice was upheld.

Orders