Legal Research
Cases
Gregorich v Khouri

Gregorich v Khouri

Case [2020] VSC 5 17 January 2020

Appeal

Jurisdiction

Standing

Civil Litigation & Procedure

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

COMMERCIAL LIST

S ECI 2018 2363

THOMAS GREGORICH (AS TRUSTEE FOR THE ARCADIA ENGINEERING SUPER PLAN AND IN HIS OWN CAPACITY)

Plaintiff

JACQUES KHOURI (AS TRUSTEE FOR THE KHOURI FAMILY TRUST AND IN HIS OWN CAPACITY)

EMMA LOUISE KHOURI

DEAN KHOURI (AS FORMER TRUSTEE FOR THE ARCADIA ENGINEERING SUPER PLAN AND IN HIS OWN CAPACITY)

PRIME EVOLUTION FINANCIAL SERVICES PTY LTD (IN LIQUIDATION)

Defendants

---

JUDGE:	NICHOLS J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 December 2019
DATE OF RULING:	17 January 2020
CASE MAY BE CITED AS:	Gregorich v Khouri & Ors
MEDIUM NEUTRAL CITATION:	[2020] VSC 5

---

PRACTICE AND PROCEDURE – Leave sought to amend defences – Supreme Court (General Civil Procedure) Rules 2015, r 36.01 – Prejudice – Loss of opportunity to take a step in the proceeding – Amcor Packaging (Australia) Pty Ltd & Ors v Australian Corrugated Box Co Pty Ltd & Ors [2013] VSCA 223 – Failure to adequately explain or show good cause for change of position – McKenzie v Commonwealth of Australia [2001] VSC 361; Jeanes v Commonwealth of Australia [2005] VSC 488; Collie v Merlaw Nominees Pty Ltd (in liq) & Anor [2001] VSC 39 – Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S J Maiden QC	Jem Lawyers
For the Defendants	Mr N Paterson	Parker Lawyers and Consultants

HER HONOUR:

Introduction

In November 2015 the plaintiff (Gregorich) invested $1,437,000[1] with one or other of the defendants. He seeks the return of those moneys or compensation for their loss, and damages for breach of the agreement governing the investment. The terms of that agreement are in dispute but the investment was made in the form of an unsecured loan of funds to be applied (at least initially) to the development of a group of properties being constructed in Davey Street, Frankston. The agreement was at least partly reduced to writing (the Davey Street Agreement).
[1]In his capacity as trustee of the Arcadia Engineering Super Plan. Separately, the plaintiff invested $110,000 with one or other of the defendants. Relief is sought in respect of that investment but it is not in issue on this application.

In defences filed on 28 June 2019 and 15 July 2019 the first, second, third and fourth defendants admitted[2] allegations that the Davey Street Agreement was made between Gregorich as lender, the third defendant (Dean) as the then Trustee of the Khouri Family Trust (the Trust) as borrower, and the fourth defendant (Prime) as “investment manager”.[3] Prime was placed into liquidation on 10 July 2019. The remaining defendants now wish to contend that Prime, and not the Trust, was the borrower and that it is Prime who is liable to the plaintiff under the Agreement. In order to do so they must have leave to withdraw the…

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 Gregorich v Khouri

Details

AGLC: Gregorich v Khouri [2020] VSC 5
Case: [2020] VSC 5
Decision Date: 17 January 2020

CaseChat Overview and Summary

In Gregorich v Khouri, the plaintiff sought leave to amend their defences in a proceeding before the Supreme Court of Victoria. The dispute centred on whether the plaintiff had acted with due diligence in applying to alter their defences, and whether such an amendment would cause undue prejudice to the defendant. The court was tasked with determining the appropriate criteria to apply in assessing the plaintiff's application, particularly in relation to the requirement of showing good cause for the delay in amending the defences.

The primary legal issue before the court was whether the plaintiff had shown good cause for the delay in amending their defences, and whether such an amendment would cause undue prejudice to the defendant. The court considered the relevant authorities, including Amcor Packaging (Australia) Pty Ltd & Ors v Australian Corrugated Box Co Pty Ltd & Ors, McKenzie v Commonwealth of Australia, Jeanes v Commonwealth of Australia, Collie v Merlaw Nominees Pty Ltd (in liq) & Anor, and Aon Risk Services Australia Limited v Australian National University. The court examined the principles established in these cases, which emphasised the importance of considering the nature of the amendment, the stage of the proceeding, and the extent of any prejudice caused by the delay.

The court found that the plaintiff had failed to adequately explain or demonstrate good cause for the delay in amending their defences. Furthermore, the court concluded that allowing the amendment would cause undue prejudice to the defendant, as it would result in the loss of an opportunity to take a step in the proceeding. The court held that the plaintiff had not demonstrated any exceptional circumstances that would warrant granting leave to amend the defences. Consequently, the court dismissed the plaintiff's application for leave to amend their defences.

The court did not make any specific orders in relation to the plaintiff's application for leave to amend their defences, as it was dismissed on the grounds of lack of good cause and undue prejudice to the defendant.

Orders