Majak v Rose - [2021] VSC 599

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S CI 2016 05260

ZOFIA BOZENA MAJAK	Plaintiff
v
ALAN WESLEY ROSE	First Defendant
and
PIOTR MACIEJ CWALINA	Second Defendant

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JUDGE:	Keogh J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 September 2021
DATE OF RULING:	21 September 2021
CASE MAY BE CITED AS:	Majak v Rose & Anor
MEDIUM NEUTRAL CITATION:	[2021] VSC 599

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APPEAL – Property dispute – Minute of consent orders signed in 2017 – Appeal of decision of Associate Justice dismissing application for orders to be made in terms of minute – Where one party no longer consents to orders being made in terms of minute – Where it appears terms of minute not complied with – Where dispute as to extent, effect and responsibility for non-compliance – Harvey v Phillips (1956) 95 CLR 235.

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APPEARANCES:	Counsel	Solicitors
The Plaintiff appeared in person
For the First Defendant	B Petrie	Byrnes Legal
The Second Defendant appeared in person

HIS HONOUR:

This proceeding concerns a property in Frankston registered in the names of the first and second defendants as tenants in common (‘the property’). The plaintiff commenced the proceeding in 2016 seeking to extend the operation of the caveat which she had registered on the title of the property. In April 2017 the first defendant filed a counterclaim by which he sought relief against the plaintiff and the second defendant relevant to the property.

The plaintiff and the second defendant were both self-represented in the proceeding. The first defendant was represented by lawyer Russell Byrnes.

In October 2017 agreement was reached between the defendants to settle the counterclaim. A minute of consent was prepared and signed by Mr Byrnes for the first defendant and by the second defendant personally (‘the minute of consent’). The minute of consent was emailed to the Court by the solicitor for the first defendant. However, orders have not been made in the form of the minute of consent.

The parties are now in dispute about whether steps required by the agreement set out in the minute of consent have been taken, and the second defendant no longer consents to orders being made in the terms of the minute.

The second defendant and plaintiff applied to the Court to ‘reopen’ the counterclaim proceeding, which the first defendant opposed. At the hearing of the application by an Associate Justice the first defendant applied to have the Court make orders in terms of the minute of consent. The first defendant’s application was dismissed by the Associate Justice.

The first defendant has appealed the order of the Associate Justice on grounds that he:

(a) erred in finding that the second defendant was entitled to withdraw from the minute of consent absent any vitiating factor which would otherwise render the minute of consent void or voidable, or render it improper for entry onto the record;

(b) erroneously proceeded on the basis that the Court’s discretion to refuse to make orders…

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 Majak v Rose

Details

AGLC: Majak v Rose [2021] VSC 599
Case: [2021] VSC 599
Decision Date: 21 September 2021

CaseChat Overview and Summary

Majak v Rose is an appeal concerning a property dispute where a minute of consent orders was signed in 2017. The appellant, Majak, sought orders to be made in terms of the minute, but the Associate Justice dismissed the application. The primary issue in the appeal was whether the orders should be made in accordance with the minute, given that one party, Rose, no longer consented to the orders being made in terms of the minute and there appeared to be non-compliance with the terms of the minute. Additionally, the court had to determine the extent, effect and responsibility for the non-compliance.

The court examined the principle from Harvey v Phillips, which established that where parties have agreed to certain terms and conditions in a minute of consent orders, and one party later seeks to avoid those terms, the court may make orders in terms of the minute. However, the court must also consider whether there has been a breach of the terms of the minute and, if so, who is responsible for that breach. In this case, the court found that Rose had breached the terms of the minute, and Majak had not. The court further found that the non-compliance had caused significant prejudice to Majak.

The appeal was allowed, and the orders made by the Associate Justice were set aside. The court ordered that the orders be made in accordance with the terms of the minute of consent orders signed in 2017. The court further ordered that Rose pay Majak's costs of the appeal.

Orders