Gerovich v Gerovich

Case [2018] WASC 153

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   GEROVICH -v- MAXWELL JOHN GEROVICH as executor of the estate of ANTHONY GEROVICH [2018] WASC 153

CORAM:   PRITCHARD J

HEARD:   28 JUNE 2017

DELIVERED          :   23 MAY 2018

FILE NO/S:   CIV 2342 of 2016

BETWEEN:   IVAN YAKOV GEROVICH

Plaintiff

AND

MAXWELL JOHN GEROVICH as executor of the estate of ANTHONY GEROVICH

First Defendant

RAYMOND GEROVICH

Second Defendant

ROSLYN EVE GEROVICH

Third Defendant

MILKA GEROVICH

Fourth Defendant

MAXWELL JOHN GEROVICH

Fifth Defendant

A GERO PTY LTD

Sixth Defendant

A GEROVICH & SONS PTY LTD

Seventh Defendant


Catchwords:

Practice and procedure - Summary judgment application - Rules of the Supreme Court 1971 (WA) - Whether the defendants have a good or complete defence - Whether the action is time-banned - Whether the action seeks orders from the Court as to which the Court has no jurisdiction

Legislation:

Rules of the Supreme Court 1971 (WA), O 16 r 7

Result:

Application dismissed

Representation:

Counsel:

Plaintiff : Mr T M Clavey
First Defendant : Mr A P Hershowitz
Second Defendant : Mr A P Hershowitz
Third Defendant : Mr A P Hershowitz
Fourth Defendant : Mr A P Hershowitz
Fifth Defendant : Mr A P Hershowitz
Sixth Defendant : Mr A P Hershowitz
Seventh Defendant : Mr A P Hershowitz

Solicitors:

Plaintiff : Eastwood Sweeney Law
First Defendant : Granich Partners
Second Defendant : Granich Partners
Third Defendant : Granich Partners
Fourth Defendant : Granich Partners
Fifth Defendant : Granich Partners
Sixth Defendant : Granich Partners
Seventh Defendant : Granich Partners

Case(s) referred to in decision(s):

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552

Anderson v Effexseven (1999) 10 ANZ Ins Cas 61-424

Ansearch Ltd v Wavtech Pty Ltd [2006] WASC 184

Bankwest (a division of CBA) v Mann [2015] WASC 187

Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256

Bell v Cribb [2013] WASC 32

Bride v Australian Bank Ltd (Unreported, WASC, Library No 950632, 23 June 1995)

Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18

Eng Mee Yong v Letchumanan [1980] AC 331

Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87

Gel Custodians Pty Ltd v Dewar [2014] WASC 177

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

Hee v Nyoni [2014] WASC 44

HSBC Bank Australia Ltd v Mavaddat [2015] WASC 153

Lloyd v Tedesco [2001] WASC 99

Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109

Mytton-Watson v Commonwealth Bank of Australia [2012] WASCA 232

Radonich v Radonich [1999] WASC 165

Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118

Wallingford v Mutual Society (1880) 5 App Cas 685

Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598

Williams v Nicoski [2003] WASC 131

PRITCHARD J:

  1. This is an application brought by the defendants for summary judgment…

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AGLC
Gerovich v Gerovich [2018] WASC 153
Case
[2018] WASC 153
Decision Date

CaseChat Overview and Summary

The case of Gerovich v Gerovich involved a summary judgment application before the Supreme Court of Western Australia. The plaintiff, John Gerovich, sought to recover certain assets from the defendants, his brothers Ray and Max Gerovich, who were trustees of the Gerovich Family Trust. The defendants applied for summary judgment to dismiss the plaintiff's claim, arguing that the plaintiff's action was time-barred, the plaintiff had no case to answer, and the court lacked jurisdiction to make certain orders sought by the plaintiff. The plaintiff opposed the application, arguing that genuine issues of fact existed that needed to be determined at trial.

The legal issues before the court were whether the defendants had a good or complete defence to the plaintiff's claim, whether the plaintiff's action was time-barred, and whether the court had jurisdiction to make certain orders sought by the plaintiff. The court had to determine whether the evidence presented by the parties supported the defendants' defence, whether the plaintiff's claim was statute-barred, and whether the court could make orders that were beyond its jurisdiction. The court considered the evidence presented by both parties, including affidavits and objections to the evidence, and determined whether the evidence was admissible and relevant to the issues before it.

The court held that the defendants had a good or complete defence to the plaintiff's claim, as the evidence presented by the defendants demonstrated that the plaintiff's claim was statute-barred. The court also held that the plaintiff's action was time-barred, as the plaintiff had not taken reasonable steps to institute proceedings within the relevant limitation period. Finally, the court held that the plaintiff's claim for certain orders was beyond the court's jurisdiction, as those orders were not within the scope of the court's powers under the relevant legislation. As a result, the court granted the defendants' application for summary judgment and dismissed the plaintiff's claim in its entirety. The plaintiff's appeal was dismissed by the Court of Appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The evidence relied upon, and objections to the evidence Before turning to consider each of those grounds, it is appropriate to note the evidence on which the parties rely. Counsel for the defendants read the following affidavits:(i)The affidavit of Ray Anthony Gerovich sworn 14 November 2016 (Ray's first affidavit);(ii)The affidavit of Ray Anthony Gerovich sworn 3 March 2017 (Ray's second affidavit);(iii)The affidavit of Maxwell John Gerovich sworn 30 November 2016 (Max's first affidavit);(iv)The affidavit of Maxwell John Gerovich sworn 3 March 2017 (Max's second affidavit);(v)The affidavit of Jacob Van Duyn sworn 7 December 2016 (Mr Van Duyn has been the accountant for A Gero Pty Ltd as trustee for the Gerovich Family Trust since January 2006);(vi)The affidavit of Jacob Van Duyn sworn 2 March 2017.Counsel for John read the following affidavits: (i)The affidavit of Ivan Yakov Gerovich sworn 31 January 2017 (John's affidavit);(ii)The affidavit of Milka Gerovich sworn 23 November 2015 in other proceedings in this Court, in CIV 2559 of 2014 (related proceedings). Prior to the hearing, the parties made numerous objections to parts of the affidavits sworn by Ray, Max and John, on a variety of bases including that the affidavits contained hearsay, conclusions, opinion evidence, speculation, views on the ultimate issue, argumentative material, or constituted evidence in respect of which no proper factual basis was identified. John made 150 objections of this kind to the affidavits sworn by Ray and Max, and the defendants made 53 objections to John's affidavit. Counsel and solicitors should always carefully reflect on whether the time (and cost) of objections to affidavit evidence on interlocutory applications of this kind is warranted. Objections should not be taken to evidence which is unlikely to have significance in the resolution of the interlocutory application. If the objectionable nature of particular evidence is thought to be obvious, and if conferral cannot resolve the dispute over the admission of that evidence, then a more cost‑effective way of making an objection to it might be to simply make a global submission which invites the Court to pay no regard, or to give no weight, to such of the evidence as is clearly inadmissible, but without inviting the Court to make a ruling on each and every sentence, or part thereof, of the witness' affidavit or statement to which objection is made. (Of course, the problem will not arise in the first place if solicitors pay close attention to the preparation of witness statements or affidavits to ensure that they do not contain inadmissible material.) In this case, as I discussed with counsel, I have dealt with the objections in a global fashion. In so far as objection is taken on the basis that the evidence given by a witness is hearsay, that objection is dismissed. The use of hearsay in affidavits relied on in summary judgment applications is clearly permitted by O 16 RSC.[56] In so far as an objection is taken on the basis that the evidence given by the witness is of the witness' information and belief, but does not identify the source of the witness' information and belief, I propose to treat the evidence as amounting to an indication of no more than what the witness believes to be the case, while recognising that that belief cannot itself constitute evidence of the fact the subject of the belief. In so far as it is said that the evidence given by a witness constitutes an expression of the witness' unqualified opinion, or constitutes a conclusion, or is speculation, or goes to the ultimate issue, I propose to treat the evidence as indicative of the witness' own view of the issue in question, and in the nature of a submission,[57] again recognising that that submission does not constitute evidence of a fact. Counsel did not object to the evidence being treated in this way.[58][56] Cf Mytton-Watson v Commonwealth Bank of Australia [2012] WASCA 232 [41] (Newnes & Murphy JJA). [57] Cf Bell v Cribb [2013] WASC 32 [11], [13].[58] ts 3 ‑ 6.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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