John Sands (Australia) Limited v Joske - [2004] VSC 251

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 9284 of 2003

JOHN SANDS (AUSTRALIA) LIMITED ARBN 072528600	Plaintiff
v
KAREN JOSKE AND SAM JOSKE	Defendants

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JUDGE:	Williams J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 May 2004
DATE OF JUDGMENT:	16 July 2004
CASE MAY BE CITED AS:	John Sands (Australia) Limited v Joske
MEDIUM NEUTRAL CITATION:	[2004] VSC 251

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PRACTICE AND PROCEDURE – appeal from order of Master dismissing application for judgment in default of appearance – whether plaintiff entitled to relief sought upon facts alleged in statement of claim – Supreme Court (General Civil Procedure) Rules 1996 r 21.01.

MORTGAGES AND CHARGES - equitable charge of interest of co-owner - remedies of equitable chargee – availability of foreclosure and judicial sale – Property Law Act 1958 (Vic) s 91(1), s 91(2).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms M Loughnan	D E Jones & Associates
For the Defendants

HER HONOUR:

The plaintiff seeks judgment in default of appearance against the defendants under Order 21.01 of the Supreme Court (General Civil Procedure) Rules 1996 (“the Rules”).

The Master dismissed the plaintiff's application for judgment and ordered that the proceeding against the second defendant be dismissed on 22 April 2004. The plaintiff has appealed from the Master’s decision to the Court. The appeal proceeded by a re-hearing de novo of the application under Order 77.05(7) of the Rules.

I note that, although the notice of appeal referred to leave being sought for lodging the appeal out of time, no such leave was required when time was calculated in accordance with Order 3.01 of the Rules.

The material before the Court

The plaintiff relied upon affidavits sworn by:

(a)Allan Maxwell Tanner, on 28 January 2004 and 18 February 2004, deposing to the service of the writ and statement of claim upon the first and second defendants on 13 and 11 January 2004, respectively;
(b)Emily Letitia Merrett:
(i) on 13 February 2004, as to a search of the register which revealed no notice of appearance filed on behalf of either defendant; and
(ii) on 17 May 2004, as to the amount of counsel’s fees;
(c)Dean Eastwood Jones, on 12 May 2004, as to the amount of the plaintiff's legal costs.

The application

The judgment sought by the plaintiff must be warranted by the facts alleged and the claim for relief made in the statement of claim: General Motors Acceptance Corp of Australia v Davis[1].
[1][1971] VR 734

The statement of claim

The plaintiff pleaded that the first defendant had entered into an agreement with it described as an “Agreement to Guarantee and Indemnify” dated on or about 17 August 1999 ("the Guarantee"). It was alleged that by the Guarantee the first defendant guaranteed payment to the plaintiff "of all moneys and performance of all obligations including any past, present and future indebtedness or obligations by Taxigon Pty Ltd". The first defendant was said to have agreed to indemnify the plaintiff "against all…

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: [2004] VSC 251
Decision Date: 16 July 2004

CaseChat Overview and Summary

In the case of John Sands (Australia) Limited v Joske, the plaintiff, John Sands, sought an appeal against the decision of a Master who dismissed their application for judgment in default of appearance. The dispute revolves around an equitable charge of interest held by the plaintiff over property owned by the defendant, Joske. The primary contention was whether the plaintiff was entitled to the relief sought based on the facts alleged in their statement of claim.

The legal issues addressed by the court included whether the plaintiff was entitled to judgment in default of appearance, and the appropriate remedies available to the equitable chargee under the Property Law Act 1958 (Vic). Specifically, the court examined the availability of foreclosure and judicial sale as remedies for the equitable chargee. The court needed to determine whether the plaintiff had fulfilled the necessary requirements under the Supreme Court (General Civil Procedure) Rules 1996, particularly rule 21.01, to obtain judgment in default of appearance.

The court found that the plaintiff had not demonstrated that they were entitled to the relief sought, as the facts alleged did not substantiate the claim. The court held that the plaintiff had not established a valid basis for obtaining judgment in default of appearance. Regarding the remedies available to the equitable chargee, the court noted that while foreclosure and judicial sale were potential remedies, they were not automatically available without a proper demonstration of entitlement. The appeal was ultimately dismissed, with the court reaffirming that the plaintiff had not met the necessary criteria for the relief sought.

Orders