| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 04873
| JENDER PTY LTD (formerly known as DAVIS GLASS PTY LTD) (ACN 006 612 577) | Plaintiff |
| v | |
| FLOOD EMERGENCY SERVICES GROUP PTY LTD (ACN 166 955 193) | First Defendant |
| MAGISTRATES’ COURT OF VICTORIA | Second Defendant |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 September 2020 |
DATE OF JUDGMENT: | 29 April 2021 |
CASE MAY BE CITED AS: | Jender Pty Ltd v Flood Emergency Services Group Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2021] VSC 212 |
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JUDICIAL REVIEW – Application pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) to quash a magistrate’s decision to dismiss an application for rehearing and to set aside default judgment – Whether there was an error on the face of the record – Whether the decision was unreasonable – Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 referred to and applied; Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 referred to; Gunns Finance Pty Ltd (R & M Appntd) (In Liq) v Storey [2014] VSC 260 referred to – Whether the magistrate failed to provide adequate reasons – Makeham v Sheppard [2020] VSCA 242 referred to – Application for judicial review granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Clarke QC with Mr J Lipinski | Wisewould Mahony |
| For the Defendants | Mr A Aleksov | Snowton Saje |
HER HONOUR:
Introduction and Background
In 2017, the plaintiff in this proceeding (‘Jender’), then known as Davis Glass Pty Ltd, operated a wholesale glass products business (‘business’) out of premises located at 156 Melrose Drive, Tullamarine (‘premises’). The director of Jender at all relevant times was Mr Derek Clayton.
On or about 25 October 2017, Jender entered into an agreement to sell its business (‘business’), including the business name “Davis Glass” to Rick Saunders and Clint Milner or their nominee (‘sale agreement’).
Davis Glass 1 Pty Ltd (‘Davis Glass 1’) was incorporated on 19 January 2018. The directors and shareholders of Davis Glass 1 are Mr Saunders and Mr Milner.
On 18 March 2018, the sale was completed. Prior to settlement, Mr Saunders and Mr Milner nominated Davis Glass 1 as the purchaser under the sale agreement. Settlement was effected by Jender handing over the assets of the business to Davis Glass 1 and vacating the premises. Davis Glass 1 entered a new lease in respect of the premises commencing on 1 April 2018.
Following the settlement of the sale, neither Jender nor Mr Clayton had any involvement in the management of the business. Jender has no employees, and is, for present purposes, dormant.
On 22 November 2018, Ms Connie Budd, an employee of Davis Glass 1, engaged the defendant in this proceeding, Flood Emergency Services Group Pty Ltd (‘FES’), to attend the premises and perform flood restoration and remediation services. Ms Budd was an employee of Jender prior to the purchase of the…
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- Case
- [2021] VSC 212
- Decision Date
CaseChat Overview and Summary
In examining the magistrate's decision, the court considered whether it contained any apparent error, as per the principles established in Minister for Immigration and Citizenship v Li. The court also assessed whether the decision was unreasonable in light of the authorities cited in Minister for Immigration and Border Protection v Stretton and Gunns Finance Pty Ltd (R & M Appntd) (In Liq) v Storey. Furthermore, the court scrutinised whether the magistrate's decision-making process was flawed due to a lack of adequate reasons, as highlighted in Makeham v Sheppard. The court found that the magistrate had not provided sufficient reasons for their decision and that the decision itself was unreasonable.
As a result of the findings, the court granted the application for judicial review, quashing the magistrate’s decision and setting aside the default judgment. The court's ruling underscored the importance of providing adequate reasons for decisions in judicial proceedings and emphasised the need for such reasons to be transparent and comprehensible. The orders of the court were that the decision of the magistrate be quashed, and the application for rehearing and to set aside the default judgment be remitted for reconsideration.
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Background
Background to the litigation
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Evidence
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Decision
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Legal Principle Established
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