Kukuy v Holden - [2023] VSCA 331

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0026

JULIA KUKUY	Applicant
v
TIMOTHY MARK SHUTTLEWORTH HOLDEN (IN HIS CAPACITY AS LIQUIDATOR OF JAY INVEST PROPERTY PTY LTD (IN LIQUIDATION) ACN 609 003 296)	First Respondent
JAY INVEST PROPERTY PTY LTD (IN LIQUIDATION) ACN 609 003 296	Second Respondent

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JUDGES:	NIALL JA
WHERE HELD:	Melbourne
DATE OF HEARING:	20 November 2023
DATE OF JUDGMENT:	19 December 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 331
JUDGMENT APPEALED FROM:	[2023] VSC 54 (Elliot J)

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PRACTICE AND PROCEDURE – Appointment of litigation guardian – Whether applicant has capacity to conduct application for leave to appeal – Where guardianship application in Victorian Civil and Administrative Tribunal has not progressed – Where applicant has benefit of stay of judge’s orders – Steps must be taken to progress application for leave to appeal for hearing – Applicant directed to file updated medical material.

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Counsel
Applicant:		No appearance
Respondents:		Ms CG Rome-Sievers with Mr L Freckelton
Amicus Curiae		Mr JP Wheelahan
Solicitors
Applicant:	—
Respondents:	Baker Jones
Amicus Curiae	—

NIALL JA:

For the reasons that follow, I will direct the applicant, Julia Kukuy (‘Ms Kukuy’) to file and serve any updated medical reports in relation to her capacity to conduct the proceeding in this Court.
In what follows I have had regard to the Court file, which includes correspondence from Ms Kukuy. The correspondence has not been formally tendered, but for present purposes I have had regard to it. I have requested the registrar to forward correspondence to the respondents in the event that it had not been sent to them by Ms Kukuy.

Background

On 28 October 2015, Jay Invest Property Pty Ltd (‘Jay Invest’) was incorporated. Ms Kukuy was its sole director, secretary and shareholder.
On 29 October 2015, the Jay Property Trust Deed was executed by Ms Kukuy on behalf of Jay Invest and by Bella Kukuy (Ms Kukuy’s mother) as settlor of the Jay Property Trust (‘the Trust’; ‘the Trust Deed’). Jay Invest was appointed as trustee. According to the second schedule of the Trust Deed, the primary beneficiaries of the Trust are Ms Kukuy and Zarah Feldman (Ms Kukuy’s daughter, who is a minor) and any children and future children thereof. Bella Kukuy is listed as both the settlor and appointor of the Trust in the second schedule to the Trust Deed.
On 13 January 2016, Jay Invest became the registered proprietor of a unit in Brighton, Victoria (‘the Brighton Property’). The Brighton Property is held by Jay Invest on trust.
On 18 January 2018, shortly after the Australian Securities and Investments Commission (‘ASIC’) commenced a strike-off application against Jay Invest, Bella Kukuy (as appointor) purportedly removed Jay Invest as trustee for the Trust and appointed Ms Kukuy as the new trustee. Pursuant to a Deed of Appointment and Removal, Ms Kukuy would become trustee and agreed to take steps to have the title in the Brighton Property transferred into her name. That has not occurred and…

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 Kukuy v Holden

Details

AGLC: Kukuy v Holden [2023] VSCA 331
Case: [2023] VSCA 331
Decision Date: 19 December 2023

CaseChat Overview and Summary

In the case of Kukuy v Holden, the applicant, Kukuy, sought leave to appeal against the dismissal of his application for the appointment of a litigation guardian. The matter was heard in the Supreme Court of Victoria, where the primary judge, Justice Byrne, was tasked with determining whether the applicant had the capacity to conduct the application for leave to appeal. This determination was necessary given the incomplete status of the guardianship application in the Victorian Civil and Administrative Tribunal, which had yet to progress. The applicant was, however, benefiting from a stay of the judge’s orders, a circumstance that influenced the court's approach to the matter.

The legal issues central to this case revolved around the applicant's capacity to pursue the appeal and the procedural steps required to facilitate this process. Given the ongoing guardianship application, the court had to balance the applicant's right to legal representation with the need to ascertain his mental capacity. Furthermore, the court was required to address how the applicant's application for leave to appeal could be advanced while the guardianship application remained unresolved. The applicant's ability to conduct the appeal independently or with assistance from a litigation guardian was pivotal to the court's decision.

Justice Byrne determined that, in light of the stay of the judge’s orders, it was necessary to take steps to progress the application for leave to appeal for a hearing. The court held that the applicant had the capacity to conduct the appeal with assistance but directed that an updated medical report should be filed to provide a clearer picture of the applicant's current mental state. The court recognised the urgency of the matter and the need to expedite the process while ensuring that the applicant's rights and interests were adequately protected. The outcome was that the application for leave to appeal was to proceed, with a directive for the applicant to provide updated medical material to support the next steps in the legal process.

Orders