Grech v Deak-Fabrikant (No 2) - [2015] VSC 389

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2009 04930

BETWEEN:

STEPHEN PHILLIP GRECH and JELVIE GRECH	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 attached Schedule)	Defendants by Counterclaim

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	22 July 2015
DATE OF JUDGMENT:	6 August 2015
CASE MAY BE CITED AS:	Grech v Deak-Fabrikant (No 2)
MEDIUM NEUTRAL CITATION:	[2015] VSC 389

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PRACTICE AND PROCEDURE – Application by plaintiff by counterclaim to re‑open the trial after judgment reserved to complete cross‑examination of opposing parties’ witnesses – Whether application ought properly have been brought under rule 49.02(2) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) – Principles applicable to applications to re‑open and applications under rule 49.02 – Rosing v Ben Shemesh [1960] VR 173 considered – Xiao Hui Ying v Perpetual Trustees Victoria Ltd [2012] VSCA 316 applied – Reason for failure to attend court – Delay – Bona fide issue to be tried – Prejudice to the parties – AON Risk Services Pty Ltd v Australian National University (2009) 239 CLR 175 considered – Relevance of Civil Procedure Act 2010 (Vic) – Uncertain scope of issues to arise in resumed trial – Importance of finality of litigation – Spotlight Pty Ltd v NCON Australia Ltd [2012] VSCA 232 and CC Containers Pty Ltd v Lee (No 5) [2013] VSC 619 considered – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the First and Second Plaintiffs/First and Second Defendants by Counterclaim	In person
For the Defendant/Plaintiff by Counterclaim	Mr D Carlile	Altona Legal
For the Third Defendant by Counterclaim	Mr A G E Robinson	Clancy & Triado

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.

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. 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 of the properties concerned (of which he had previously been the registered proprietor) on trust for her, and orders pursuant to section 45 of the Relationships Act 2008 (Vic) for an adjustment of interests in respect of the property of Paul Grech in her favour.

On 30 October 2014, the twenty-seventh sitting day of the trial, counsel for Paul Grech, supported by Stephen and Jelvie Grech, made an application that the trial proceed in the absence of Ms Deak-Fabrikant. The application was…

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: [2015] VSC 389
Decision Date: 6 August 2015

CaseChat Overview and Summary

In Grech v Deak-Fabrikant (No 2), the plaintiff, Mr. Grech, sought to re-open a trial after judgment had been reserved to complete the cross-examination of witnesses from the defendant, Mr. Deak-Fabrikant. The case was before the Supreme Court of Victoria. The primary legal issue was whether Mr. Grech's application to re-open the trial, which was intended to allow for further cross-examination, should have been made under rule 49.02(2) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic), and if so, whether the application was justified under the principles governing such applications.

The court examined the principles applicable to both re-opening trials and applications under rule 49.02. It considered the case of Rosing v Ben Shemesh [1960] VR 173 and Xiao Hui Ying v Perpetual Trustees Victoria Ltd [2012] VSCA 316, which highlight the importance of finality in litigation and the need to balance this with fairness. The court also took into account AON Risk Services Pty Ltd v Australian National University (2009) 239 CLR 175, which outlines the factors relevant to determining whether an application to re-open should be granted. The court found that the plaintiff had not demonstrated sufficient reason for the failure to attend court, had caused delay, and had not shown that there was a bona fide issue to be tried. Furthermore, the court noted the prejudice to the parties and the uncertain scope of the issues to arise in a resumed trial.

After considering all these factors, the court concluded that the application to re-open the trial was not warranted. The reasons for the plaintiff’s failure to attend court were not compelling, and there was a significant risk of prejudice to the defendant. The court emphasised the importance of the finality of litigation, a principle reinforced by cases such as Spotlight Pty Ltd v NCON Australia Ltd [2012] VSCA 232 and CC Containers Pty Ltd v Lee (No 5) [2013] VSC 619. Consequently, the application to re-open the trial was refused.

Orders