George Dimitrovski v Australian Executor Trustees Limited - [2014] HCASL 189

GEORGE DIMITROVSKI
v
AUSTRALIAN EXECUTOR TRUSTEES LIMITED & ANOR
[2014] HCASL 189
S112/2014

The applicant seeks special leave to appeal against the orders of the Court of Appeal of the Supreme Court of New South Wales (Meagher and Emmett JJA and Bergin CJ in Eq) dismissing the applicant's appeal against orders of the Supreme Court of New South Wales (Pembroke J).
In September 2006, the first respondent advanced $3.311 million to Thirroul Property Holdings Pty Ltd ("the borrower") to assist it to purchase a hotel. The repayment of the loan was guaranteed jointly and severally by the applicant and his father, the second respondent. It was also guaranteed by the applicant's grandmother, who gave a mortgage over three properties owned by her in support of her guarantee.
The applicant's grandmother died in May 2008. In October 2008, as executors of her estate, the applicant and the second respondent became registered proprietors of the properties the subject of the mortgage. The borrower defaulted on the loan in 2010. In January 2011, the first respondent commenced proceedings in the Common Law Division of the Supreme Court of New South Wales for possession of two of the mortgaged properties. No defences were filed in the proceedings, and in May 2011 the first respondent sought and obtained default judgment against the applicant and second respondent.
In September 2012, as one of the executors of the estate, the applicant commenced proceedings in the Equity Division of the Supreme Court of New South Wales against the first and the second respondents seeking, among other things, a declaration that his grandmother's guarantee and mortgage were void. The applicant and second respondent also applied to have the default judgments for possession set aside and the first respondent applied to have the proceedings summarily dismissed.
On 19 April 2013, Pembroke J made orders dismissing the applications to have the default judgments for possession set aside, and summarily dismissing the proceedings in the Equity Division in respect of all but one issue. The applicant sought leave to appeal the order summarily dismissing the proceedings, but did not seek leave to appeal the orders dismissing the applications to set aside the default judgments.
On 18 March 2014, the Court of Appeal unanimously allowed the applicant's application for leave to appeal, but dismissed his appeal. In doing so, it rejected his arguments that the doctrine of res judicata did not apply in this case.
The application is brought out of time and the applicant seeks an order under r 41.02.2 of the High Court Rules 2004 dispensing with the requirement to comply with the time limit in r 41.02.1. It is not necessary to decide whether that order should be made.
As the applicant is unrepresented, the application falls to be dealt with under r 41.10.
We see no reason to doubt the correctness of the conclusions reached by the Court of Appeal. An appeal to this Court would enjoy insufficient prospects of success to warrant a grant of special leave to…

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: [2014] HCASL 189
Decision Date

CaseChat Overview and Summary

George Dimitrovski sought special leave to appeal against the orders of the Court of Appeal of the Supreme Court of New South Wales, which had dismissed his appeal against the orders of the Supreme Court of New South Wales. The underlying dispute involved a loan of $3.311 million made by the first respondent, Australian Executor Trustees Limited, to Thirroul Property Holdings Pty Ltd, with the loan guaranteed by Dimitrovski, his father, and his grandmother. After the grandmother's death, the first respondent sought possession of two mortgaged properties following the borrower's default on the loan. Dimitrovski argued that the guarantee and mortgage by his grandmother were void and sought relief in the Supreme Court of New South Wales.

The legal issues before the Court of Appeal included whether the doctrine of res judicata applied to bar Dimitrovski's claims, and whether the Court of Appeal had erred in dismissing his appeal. The Court of Appeal rejected Dimitrovski's argument that res judicata did not apply and dismissed his appeal. The Court found that the conclusions reached by the Court of Appeal were correct and that an appeal to the High Court would have insufficient prospects of success to warrant a grant of special leave to appeal. The application for special leave to appeal was therefore dismissed, and the matter was considered under rule 41.10 of the High Court Rules 2004 due to Dimitrovski being unrepresented.

The High Court, after considering the arguments and the merits of the case, found no reason to doubt the correctness of the Court of Appeal's conclusions. It determined that granting special leave to appeal would not be warranted due to the insufficient prospects of success. As a result, the Registrar was directed to draw up, sign, and seal an order dismissing the application for special leave to appeal.

Orders