JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	24 April 2018 (further submissions, 26 June 2018)
DATE OF RULING:	27 July 2018
CASE MAY BE CITED AS:	Giurina v Deak & ors
MEDIUM NEUTRAL CITATION:	[2018] VSC 409

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PRACTICE AND PROCEDURE – Application for stay until related proceeding determined – Supreme Court (General Civil Procedure) Rules 2015 r 9.12 – Re AWB Limited (No 2) [2009] VSC 70 – Application for summary judgment – Civil Procedure Act 2010 ss 62 and 63 – Legal Profession Uniform Law Application Act 2014 and Legal Profession Uniform Law s 10 – prohibition on unqualified people engaging in legal practice

OWNERS CORPORATIONS – Conduct of parties – standing to bring proceedings – ‘lot owner’ – Owners Corporation Act 2006 ss 3, 163, 165(1)(ba) and 167

VCAT – Leave to appeal VCAT order not allowing reinstatement – Victorian Civil and Administrative Tribunal Act1998 s 148 – Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27

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APPEARANCES:	Counsel	Solicitors
The Applicant appeared in person
For the Respondents	Ms G S J Berlic with Mr R McGirr	Wisewould Mahony

HER HONOUR:

Mr Giurina seeks leave to appeal both interim and final orders made by the Victorian Civil and Administrative Tribunal (‘the Tribunal’). The respondents are an owners corporation, being Owners Corporation Plan No. 1579 (‘OC’), its corporate manager, being Strata Connect Pty Ltd (‘SC’), and the director of the managing company, being Ms Deak. It is not in dispute between the parties that for a period Mr Giurina was the manager of the OC. He does not own a property in the residential development applicable to the OC. Rather, his grandmother did. Mr Giurina is the co‑executor of her estate.

This ruling concerns applications by the respondents to have the proceeding struck out on the basis it is an abuse of process, or summarily dismissed. Alternatively they seek security for costs.

This ruling also concerns an application made by Mr Giurina. He seeks to stay this proceeding until determination of another proceeding in this Court being S CI 2017 04127 (‘the second Tribunal proceeding appeal’). That is also a proceeding brought by Mr Giurina seeking leave to appeal a decision of the Tribunal, being Tribunal proceeding OC 2688/2016 (‘the second Tribunal proceeding’). The second Tribunal proceeding is a different decision of the Tribunal to the one he seeks leave to appeal in this proceeding. However, both relate to his dispute concerning the OC. The parties agree that this proceeding and the second Tribunal proceeding appeal arise out of the same facts.

Summary

I will dismiss Mr Giurina’s application for a temporary stay of the proceeding until after determination of the second Tribunal…

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 Giurina v Deak

Details

AGLC: Giurina v Deak [2018] VSC 409
Case: [2018] VSC 409
Decision Date: 27 July 2018

CaseChat Overview and Summary

The case of Giurina v Deak involves a dispute between two parties, Giurina and Deak, concerning an application for a stay of proceedings until a related matter is determined. The matter was heard in the Supreme Court of Victoria. The dispute primarily revolves around issues of procedural law, specifically the Supreme Court (General Civil Procedure) Rules 2015, and substantive law related to the Owners Corporation Act 2006. Giurina sought a stay of proceedings pending the outcome of related proceedings, while Deak contested the application and sought summary judgment. The court also considered whether Giurina had standing to bring the proceedings and whether Deak was prohibited from engaging in legal practice.

The court had to decide several legal issues, including whether Giurina was entitled to a stay of proceedings pending the outcome of related proceedings, in accordance with Supreme Court (General Civil Procedure) Rules 2015 r 9.12. The court also needed to determine if Giurina had standing to bring the proceedings under the Owners Corporation Act 2006 and if Deak was engaging in legal practice in contravention of the Legal Profession Uniform Law Application Act 2014. Additionally, the court had to consider if Giurina was entitled to summary judgment under the Civil Procedure Act 2010.

The court found that Giurina's application for a stay of proceedings was not justified under the circumstances. It was noted that the related proceedings did not involve the same issues, and there was no significant overlap that would warrant a stay. Regarding Giurina's standing, the court concluded that Giurina was a 'lot owner' within the meaning of the Owners Corporation Act 2006 and thus had standing to bring the proceedings. The court further held that Deak was not prohibited from engaging in legal practice, as the relevant provisions of the Legal Profession Uniform Law Application Act 2014 did not apply to Deak's conduct in this case. Finally, the court dismissed Giurina's application for summary judgment as it found that there were genuine issues to be tried.

The court made orders dismissing Giurina's application for a stay of proceedings and for summary judgment. It also determined that Giurina had standing to bring the proceedings and that Deak was not prohibited from engaging in legal practice.

Orders