Larissa Deak-Fabrikant v Stephen Phillip Grech , Jelvie Grech , Paul Grech and Registrar of Titles
[2016] VSCA 50
•21 March 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2016 0028
| LARISSA DEAK-FABRIKANT | Applicant |
| v | |
| STEPHEN PHILLIP GRECH | First Respondents |
| JELVIE GRECH | Second Respondents |
| PAUL GRECH | Third Respondent |
| REGISTRAR OF TITLES | Fourth Respondent |
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| JUDGES: | PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 21 March 2016 |
| DATE OF JUDGMENT: | 21 March 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 50 |
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PRACTICE AND PROCEDURE – Appeal – Application for leave to appeal – Application for extension of time within which to seek leave to appeal – Stay – Application for stay of trial judge’s orders pending hearing of applications and appeal – Whether appeal would be rendered nugatory – Applicant’s position protected by undertaking – Application for stay refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Fronistas | Altona Legal |
| For the First and Second Respondents | In person | |
| For the Third Respondent | Mr A G E Robinson | Clancy and Triado |
| For the Fourth Respondent | No appearance. |
PRIEST JA
BEACH JA:
Introduction
The applicant and the third respondent were in a defacto relationship for a number of years. While the parties are unable to agree when this relationship commenced, they agree that it ended in September 2008. The first and second respondents are husband and wife. The first respondent is the son of the third respondent.
The first and second respondents were the registered proprietors of five properties, described in the proceeding below as the Altona property, the Sanctuary Lakes property, the Speakmen Street property, the Errol Street property and the Ballarat Road property. On 23 October 2008, the applicant lodged caveats over each of the five properties claiming an interest in fee simple in the properties. The basis for the interest claimed in each caveat was expressed in each caveat as follows:
By virtue of the resulting implied or constructive trust in favour of the caveator arising from the contribution made by the caveator towards the acquisition, conservation and improvement of the said land.
On 26 February 2009, the first and second respondents issued a proceeding in the Trial Division seeking, among other things, the removal of the caveats over the five properties. On 16 June 2009, the applicant filed a counterclaim joining the third respondent. In her counterclaim, the applicant sought certain declarations as to the interests claimed by her in respect of the five properties, made a claim under the Relationships Act 2008 for an adjustment of the property interests of the third respondent in her favour, and sought damages for an assault alleged to have occurred on 28 September 2008 in the garden of the Altona property.
The trial of the proceeding between the parties occupied some thirty sitting days between 21 July 2014 and 31 August 2015. For the greater part of the trial, the applicant was unrepresented.[1] There were days during the trial when the applicant did not attend the trial. The applicant’s failure to attend the trial was the subject of a ruling by the trial judge on 30 October 2014.[2] While the trial judge’s decision was reserved, the applicant made an application to re-open her case. This application was the subject of another judgment by the trial judge.[3]
[1]Or, in modern parlance, ‘self-represented’.
[2]Grech v Deak-Fabrikant [2014] VSC 558 (‘the first ruling’).
[3]Grech v Deak-Fabrikant (No 2) [2015] VSC 389 (‘the second ruling’).
On 28 October 2015, the trial judge delivered lengthy and detailed reasons for judgment on both the claim and counterclaim.[4] In her reasons for judgment, the trial judge made the following conclusions:
[4]Grech v Deak-Fabrikant (No 3) [2015] VSC 581 (‘the trial judgment’).
(a)neither Paul Grech [the third respondent] or Ms Deak‑Fabrikant [the applicant] have any beneficial interest in the properties at Errol Street, Speakmen Street, or Ballarat Road. As such, the caveats over those properties ought to be removed immediately;
(b)I am not satisfied that Paul Grech declared that he was the trustee of Ms Deak‑Fabrikant’s fifty per cent interest in either the Altona property or the Sanctuary Lakes property (or for that matter, the Errol Street property), or made any legally enforceable promises to her to that effect;
(c)however, Ms Deak‑Fabrikant has a valid claim for an adjustment of property interests under s 45 of the Relationships Act, and the relevant asset pool for consideration includes the Altona property and the Sanctuary Lakes property;
(d)I consider that Ms Deak‑Fabrikant’s financial contributions to the conservation and improvement of the Altona property warrant an award of five per cent of the value of the asset pool;
(e)I consider that Ms Deak‑Fabrikant’s financial contributions to the financial resources of Paul Grech and Stephen Grech [the first respondent], including her contributions to household expenses and the use of the furniture and household goods brought by her into the Altona property have been offset by the contributions made to her financial welfare by Paul Grech, and do not warrant any further award in her favour;
(f)having regard to the non‑financial contributions of Ms Deak‑Fabrikant to the welfare of Paul Grech, a further adjustment equivalent to ten per cent of the value of the asset pool is warranted; and
(g)having regard to the relevant factors under s 51 of the Relationships Act, a further adjustment equivalent to five per cent of the asset pool is warranted.[5]
[5]Trial judgment, [417].
The judge identified the asset pool that was to be divided between the applicant and the third respondent as comprising the Altona property and the Sanctuary Lakes property. The judge accepted valuation evidence called at trial that the Altona property was valued at $740,000 and the Sanctuary Lakes property was valued at $540,000.[6]
[6]Trial judgment [97], [98] and [418].
Having delivered her reasons, the trial judge then made orders removing the caveats over the Altona property, the Speakmen Street property, the Errol Street property and the Ballarat Road property. Additionally, the trial judge made an order giving the first respondent possession of the Altona property, such order to be stayed for ninety days from 28 October 2015.
On 3 December 2015, the trial judge heard argument on the question of costs and related matters. On 10 February 2016, her Honour delivered reasons in respect of those matters[7] and made orders for the payment of costs, the netting of amounts ordered and the provision of a lien to a law firm in the event of non-payment of a particular amount ordered (paragraphs 1 to 5 of the orders made 10 February 2016).
[7]Grech v Deak-Fabrikant (No 4) [2016] VSC 35 (‘the costs judgment’).
Applications to this Court
On 16 March 2016, the applicant filed an application for leave to appeal from the orders made by the trial judge on 30 October 2014, paragraphs 1(a)–(d), 2 and 5 to 8 of the orders made on 28 October 2015 and paragraphs 1 to 5 of the orders made on 10 February 2016. Additionally, the applicant filed an application for a stay seeking a stay of paragraphs 1 and 2 of the orders of 28 October 2015 and paragraphs 1 to 5 of the orders of 10 February 2016; an application for an extension of time within which to file an application for leave to appeal in relation to the orders made on 30 October 2014 and 28 October 2015; and a written case.
The applicant’s proposed grounds of appeal set out in her application for leave to appeal include complaints about denials of procedural fairness by the trial judge, actual bias of the trial judge, procedural errors, errors of law in interpreting various statutory provisions and errors in relation to the trial judge’s treatment of the evidence. The written case is a somewhat spare document that rehearses the complaints set out in the application for leave to appeal, but does not set out an argument in support of these grounds. If the matter is to proceed in this Court, the applicant will have to file and serve a proper written case that sets out the argument she wishes to advance.
On 16 March 2016, the applicant was granted an ex parte interim stay on the papers until today (with liberty reserved to the respondents or any party affected by that order to apply to this Court to set aside this stay order on two hours’ notice to the applicant). The interim stay order was made as a matter of urgency in circumstances where the applicant was said to be about to be evicted from the Altona property. This is the hearing of the applicant’s application for a stay of paragraphs 1 and 2 of the orders of 28 October 2015, and paragraphs 1 to 5 of the orders of 10 February 2016.
The stay application
The principles governing the granting of a stay pending the hearing and the determination of an application for leave to appeal/appeal in this Court are well known and do not need to be rehearsed here.[8] The Court has a wide discretion, not circumscribed by rigid rules.[9] That said, contrary to the applicant’s written submissions, generally speaking, in order to be granted a stay, the applicant must establish special circumstances.[10]
[8]See generally, Cellante v G Kallis Industries Pty Lyd [1991] 2 VR 653 (Young CJ and Brooking J) (‘Cellante’); Maher v Commonwealth Bank of Australia [2008] VSCA 122, [19]-[27] (Redlich and Dodds-Streeton JJA) (‘Maher’); and Cross Country Realty v Ubertas [2015] VSCA 347, [81]–[90] (Kyrou and McLeish JJA) (‘Cross Country Realty’).
[9]Maher, [23].
[10]Cellante [1991] 2 VR 653, 656.
The applicant has filed two affidavits in this Court: one in support of her application for an extension of time; and the other in support of her application for a stay. The applicant’s affidavit in support of her application for a stay refers to and repeats the contents of her affidavit in support of her application for an extension of time. In relation to the extension of time, the applicant deposes to matters relating to her age, health and finances, and the fact that she gave instructions to solicitors, on or before 2 December 2015, to file an appeal. In her second affidavit, the applicant deposes to the possible dissipation of assets should a stay not be granted.
In summary, the applicant contends that her proposed appeal has sufficient strength to justify the granting of a stay, in circumstances where a failure to grant a stay may result in any appeal being rendered nugatory. Additionally, the applicant relies on the fact that she has lived in the Altona property for many years and made financial contributions in respect of it (in circumstances where her eviction will cause great inconvenience to her) as being a further basis justifying a stay.
The first, second and third respondents oppose the applicant’s application for a stay. They contend that no circumstances exist that justify this Court in granting a stay. However, during the course of argument this morning, the first and second respondents gave undertakings to the Court that they would not transfer or further encumber the Altona property pending the hearing and determination of the applicant’s applications and any appeal in this Court. It is, we were told, the first and second respondents’ intention to lease the Altona property if they are given possession.
For the sake of completeness, we note that the fourth respondent (the Registrar of Titles) did not oppose the stay application, and took no part in it in this Court.
While we are not in any position on this application to form any concluded view about the merits of the applicant’s application for leave to appeal/appeal it must be said that it is not immediately apparent that there is any manifest or obvious error in the judgments sought to be impugned by the applicant. Further, a number of the applicant’s ‘procedural’ complaints appear to us to be bordering on the hopeless, if not totally without merit.
The applicant’s material for a stay is decidedly thin. Further, the course pursued by the applicant at trial seems to have been calculated to obfuscate the issues and delay the eventual outcome of the trial. We see no basis for any further stay of the orders made in respect of the Altona property, the Speakmen Street property, the Errol Street property and the Ballarat Road property; nor do we think that the applicant’s material justifies any stay of the trial judge’s orders for the various payments and lien referred to in paragraphs 1 to 5 of the orders of 28 October 2015. We note that the caveat lodged by the applicant over the Sanctuary Lakes property remains in force. This caveat, and the undertaking given by the first and second respondents in relation to the Altona property, is in our view sufficient to protect the applicant’s position until the further hearing and determination of her applications for an extension of time and leave to appeal in this Court.[11]
[11]See paragraph 8 of the orders of 28 October 2015.
Further, we are not persuaded that the history of the applicant’s occupation of the Altona property, or any of the other matters advanced on her behalf, justifies a stay of the trial judge’s orders.
Further conduct of the proceeding in this Court
Consistently with what we have already said, the applicant will be required to file and serve an amended written case which properly articulates the case that she wishes to pursue in this Court. This should be done within a relatively short space of time. Subject to further order, we propose to direct that once the respondents have filed any material in opposition to the application for an extension of time, the application for an extension of time will be dealt with by the Court as presently constituted.
Orders
We propose to make the following orders:
1. The applicant’s application for a stay is dismissed with costs.
2. By 4.15pm on 5 April 2016, the applicant file and serve an amended written case and any further affidavit and submissions in support of her application for an extension of time within which to seek leave to appeal.
3. By 4.15pm on 19 April 2016, the respondents file and serve any further affidavit and submissions in opposition to the applicant’s application for an extension of time within which to seek leave to appeal.
4. The applicant’s application for an extension of time within which to seek leave to appeal is fixed for hearing on 22 April 2016 at 9.30am.
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