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Lollis v Loulatzis (No 3)

Lollis v Loulatzis (No 3)

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Case Copied 27 June 2008 32 min read

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Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8583 of 2003

STELLA LOLLIS	Plaintiff
v
ANTHONY KASI LOULATZIS	First Defendant
and
IRENE PETRUCCELLI	Second Defendant

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 June 2008
DATE OF JUDGMENT:	27 June 2008
CASE MAY BE CITED AS:	Lollis v Loulatzis & Anor (No 3)
MEDIUM NEUTRAL CITATION:	[2008] VSC 231

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PRACTICE – Application to set aside authenticated judgment and substitute judgment for damages by reason of conduct of defendant after judgment – Whether inherent jurisdiction – Supreme Court (General Civil Procedure) Rules 2005 – Rule 66.14.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms C H Sparke	Middletons
For the First Defendant	Mr A J Vriends	NA Young & Co
For the Second Defendant	Ms S Bingham	Beaumont Lawyers

HIS HONOUR:

This is an application, by summons by the plaintiff, to vacate or set aside part of the orders which I made after delivering judgment in the matter, and to substitute different orders in lieu. The application is made on the basis that this Court has power to make such an order, either pursuant to the inherent jurisdiction of the Court, or alternatively pursuant to Rule 66.14 of the Rules of the Supreme Court.

The background to the application may be shortly stated. The plaintiff is the registered proprietor of a residential property at 25 Green Street, Camberwell. The first defendant is her eldest son. The second defendant is the former partner of the first defendant, and they have two children. Since the early 1990s the first defendant, and since 1995 the second defendant, had resided at the property. In these proceedings, commenced in 2003, the plaintiff claimed possession of the property against both defendants. She also sought damages in the form of mesne profits. The defendants resisted the claim for possession, based on a counterclaim by the first defendant. In that counterclaim, the first defendant sought a declaration that the plaintiff held the property on trust for him, or a charge over the property. He claimed to be entitled to that relief on the basis of a promissory estoppel.

After a trial lasting 18 days, I delivered written reasons for judgment on 18 December 2007.[1] I held that the first defendant had not established any basis of estoppel alleged by him in his counterclaim, and that accordingly the plaintiff was entitled to an order for possession of the property. I found that the fair rental value of the property, for the period of trespass claimed by the plaintiff, was $208,630. However, I also found that the first defendant had made substantial improvements to the property, and that he had expended very significant sums of money, and carried out very many hours of work, in doing so. I held, in the circumstances of the case, that the defendants were entitled to offset, against the damages claimed by the plaintiff, the cost to the first defendant of…

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: [2008] VSC 231
Decision Date: 27 June 2008

CaseChat Overview and Summary

Lollis v Loulatzis (No 3) is an Australian case that involved an application by the plaintiff, Lollis, to set aside an authenticated judgment and substitute a new judgment for damages due to the defendant, Loulatzis, engaging in conduct after the judgment was entered. The case was heard in the Supreme Court of Queensland. The legal issues before the court were whether the court had inherent jurisdiction to set aside an authenticated judgment and substitute a new judgment, and if so, under what circumstances. The court was also required to determine whether the Supreme Court (General Civil Procedure) Rules 2005, specifically Rule 66.14, provided guidance on this matter.

The court held that it did indeed have the inherent jurisdiction to set aside an authenticated judgment and substitute a new judgment if certain conditions were met. It found that the court must consider the conduct of the party seeking to set aside the judgment, the reasons for the delay in making the application, and whether there was any prejudice to the opposing party. The court noted that Rule 66.14 of the Supreme Court (General Civil Procedure) Rules 2005 provided some guidance in this area, but did not limit the court's inherent jurisdiction. The court found that the defendant's conduct was significant and warranted setting aside the authenticated judgment and substituting a new one for damages.

The court ordered that the authenticated judgment be set aside and a new judgment be entered for damages in favour of Lollis against Loulatzis. The court also ordered that Loulatzis pay Lollis' costs of the application. This decision highlights the importance of considering the inherent jurisdiction of the court when dealing with applications to set aside authenticated judgments and substitute new judgments. It also underscores the need for parties to act promptly and fairly in such situations to avoid adverse consequences.

Orders