Grech v Deak-Fabrikant - [2014] VSC 558

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S CI 2009 4930

BETWEEN:

STEPHEN PHILLIP GRECH and JELVIE GRECH (also known as JELVIE PANGALILA)	Plaintiffs
- and -
LARISSA DEAK-FABRIKANT and REGISTRAR OF TITLES	Defendants
AND BETWEEN:
LARISSA DEAK-FABRIKANT	Plaintiff by Counterclaim
- and -
STEPHEN PHILLIP GRECH (and others according to the schedule attached)	Defendants by Counterclaim

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JUDGE:	DALY AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	30 October 2014
DATE OF RULING:	30 October 2014 (Reasons published 5 November 2014)
CASE MAY BE CITED AS:	Grech and Anor v Deak-Fabrikant
MEDIUM NEUTRAL CITATION:	[2014] VSC 558

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PRACTICE AND PROCEDURE – Civil Procedure Act 2010 (Vic) ss 20, 24, 25, 28 – Supreme Court (General Civil Procedure) Rules 2005 r. 49.02 – Application for leave to proceed at trial in absence of party – Deliberate non‑compliance with Court’s direction - Breach of overarching obligations – Rights of a self-represented litigant to a fair hearing.

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APPEARANCES:	Counsel	Solicitors
For the First and Second Plaintiffs	In person
For the Third Defendant by Counterclaim	Mr A. Robinson	Clancy & Triado
For the Defendant/Plaintiff by Counterclaim	No appearance

HER HONOUR:

In this proceeding which was issued on 26 February 2009, the plaintiffs/first and second defendants by counterclaim, Mr Stephen and Ms Jelvie Grech (who are husband and wife), seek orders for the removal of caveats lodged by the defendant/plaintiff by counterclaim, Ms Larissa Deak‑Fabrikant, over five properties of which the plaintiffs are either individually or jointly registered as proprietors. Ms Deak‑Fabrikant’s grounds of claim were stated to be:

by virtue of the resulting implied or constructive trust in favour of the caveator arising from the contribution made by the caveator towards the acquisition, conservation and improvement of the said land.

On 16 June 2009 Ms Deak‑Fabrikant filed and served a counterclaim, which joined to the proceeding Mr Paul Grech, her former de facto partner and the father of Stephen Grech.

This proceeding was stayed on 11 February 2011 pending the hearing and determination of charges of rape laid against Paul Grech following allegations made by Ms Deak‑Fabrikant. Shortly prior to the scheduled commencement of the proceeding in the County Court in June 2012, the Director of Public Prosecutions withdrew the charges.

This proceeding was relisted before this Court on 18 March 2013, at the request of Paul Grech, who was at that time unrepresented. Both Ms Deak‑Fabrikant and Stephen and Jelvie Grech were represented by solicitors throughout the next few months. By orders made on 4 June 2013, the proceeding was listed for trial on 23 April 2014 on an estimate of eight to 10 days. Ms Deak-Fabrikant’s solicitors ceased to act for her on 26 February 2014. The trial date was subsequently vacated in circumstances elaborated upon below, refixed for 21 July 2014, and it commenced on that day.

In her counterclaim, Ms Deak-Fabrikant seeks certain declarations regarding the ownership of the five properties over which she lodged caveats, including declarations that Paul Grech held two…

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 Grech v Deak-Fabrikant

Details

AGLC: Grech v Deak-Fabrikant [2014] VSC 558
Case: [2014] VSC 558
Decision Date: 30 October 2014 (Reasons published 5 November 2014)

CaseChat Overview and Summary

The matter of Grech v Deak-Fabrikant involved a dispute between the plaintiff, Grech, and the defendant, Deak-Fabrikant, concerning alleged breaches of contract and misrepresentation. The case was heard in the Supreme Court of Victoria, where the plaintiff, who was self-represented, sought leave to proceed with the trial in the absence of the defendant who had deliberately failed to comply with a court direction.

The legal issues before the court included whether the plaintiff was entitled to a fair hearing under the Civil Procedure Act 2010 (Vic) and whether the defendant's non-compliance with the court's direction constituted a breach of overarching obligations. The court also needed to determine the appropriate remedy under the Supreme Court (General Civil Procedure) Rules 2005 in light of the defendant's failure to participate in the proceedings.

The court found that the defendant's deliberate non-compliance with the court's direction and failure to participate in the proceedings constituted a serious breach of overarching obligations. The court emphasised the importance of the rights of a self-represented litigant to a fair hearing and concluded that the defendant's actions deprived the plaintiff of that right. Consequently, the court granted the plaintiff's application for leave to proceed at trial in the absence of the defendant and directed that the matter proceed as if the defendant were present. The court also ordered the defendant to pay the plaintiff's costs associated with the application.

Orders