Kleinsman v Capri - [2016] VSC 82

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT

S CI 2015 01326

HERMAN JOHN BERNARD KLEINSMAN LEGAL REPRESENTATIVE OF MARIA HUBERTINE LANGNER & ANOR	Plaintiffs
v
JOSEPH CAPRI & ORS	Defendants

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JUDGE:	JOHN DIXON J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 March 2016
DATE OF JUDGMENT:	2 March 2016 (revised 21 March 2016)
CASE MAY BE CITED AS:	Kleinsman v Capri
MEDIUM NEUTRAL CITATION:	[2016] VSC 82

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PRACTICE AND PROCEDURE – Default judgment for possession of land and for debt – Warrant for possession in process of execution – Oral application by defendants for stay of execution and to set aside the judgment – Application refused – No new point of principle – r 21.07, 66.16 Supreme Court (General Civil Procedure) Rules 2015.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	No appearance
For the first and second Defendants	In person, assisted by Mr D Bullmore as a McKenzie Friend.
For the third Defendant	No appearance

HIS HONOUR:

In this proceeding the first and second defendants, Joseph and Rosemary Capri, come before the court seeking urgent relief on an ex parte basis.

On their behalf, a financial planner, Mr David Bullmore, was given leave to appear as a McKenzie Friend. However, he effectively acted as an ineffective advocate. The first defendant, Mr Joseph Capri produced an unsworn affidavit, and in addition, Mr Bullmore made submissions to the court that included references to facts not supported by that, or any, affidavit or other document before the court.

The plaintiffs did not appear. I was informed by Mr Bullmore that in recent days they had been informed by him of the defendants’ intention to apply to the court for urgent relief but it was not clear that they were informed that an application would be made before me in this court at a particular time. In any event, they were not present. I am not satisfied that the plaintiffs were given adequate notice of this application or that Mr Bullmore and the defendants acted appropriately to ensure that the plaintiffs were present in court for their application. In view of the apparent urgency of the application, I agreed to hear Mr Bullmore for the defendants on the basis of the draft affidavit on an ex parte basis.

For the reasons that follow, the application will be refused.

The immediate cause of the application made was that the Sheriff was at the time of the hearing executing a warrant of possession that had been issued in favour of the plaintiffs in enforcement of a default judgment that had been earlier obtained against the defendants. The application could not have been made at a later point in the continuum of events.

The court file revealed some procedural issues about the default judgment for possession but ultimately a default judgment against all of the registered proprietors of the property was obtained on 30 October 2015. The initial warrant erroneously described the property address and it…

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: [2016] VSC 82
Decision Date: 2 March 2016 (revised 21 March 2016)

CaseChat Overview and Summary

The case of Kleinsman v Capri arose in the Supreme Court of Queensland, with the plaintiff, Kleinsman, seeking both possession of certain land and a debt owed by the defendants, Capri. The proceedings culminated in a default judgment in favour of Kleinsman. Following this, a warrant for possession was issued and was in the process of being executed when the defendants made an oral application to the court to stay the execution and to set aside the judgment. The defendants' application was refused by the court.

The legal issues that the court had to decide included whether the court should grant a stay of execution and set aside the judgment. These issues were considered under the relevant rules of court, specifically rules 21.07 and 66.16 of the Supreme Court (General Civil Procedure) Rules 2015. The court had to determine if the defendants had presented a new point of principle or any other valid grounds to justify setting aside the judgment or staying the execution of the warrant.

In delivering the judgment, the court held that the defendants had not presented a new point of principle or any other valid grounds to justify setting aside the judgment or staying the execution of the warrant. The court found that the defendants had failed to provide sufficient evidence or argument to persuade the court that the default judgment should be reconsidered. As such, the court refused the defendants' application and the warrant for possession remained in effect.

The final orders of the court were that the defendants' oral application to stay the execution and to set aside the judgment was refused. The defendants were ordered to pay the costs of the application.

Orders