Malhotra v Tiwari
[2002] VSC 536
•10 December 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. 6869 of 2002
| DINESH MALHOTRA | Plaintiff |
| v | |
| SHEELA TIWARI AND ANOTHER | Defendants |
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JUDGE: | BEACH J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 19 NOVEMBER 2002 | |
DATE OF JUDGMENT: | 10 DECEMBER 2002 | |
CASE MAY BE CITED AS: | MALHOTRA v. TIWARI & ANOR | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 536 | |
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CATCHWORDS: Applications for summary judgment by defendants – Issues of fact requiring trial of proceeding – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J.M. Selimi | Starnet Legal Pty Ltd |
| For the Defendants | Mr A. Herskope | Velos & Davis |
HIS HONOUR:
This is the return of a summons filed in the Court by the defendants on 1 November 2002 whereby the defendants seek the following orders:
"1.There be judgment for the defendants pursuant to Rule 23.01, alternatively Rule 23.03.
2.Within 7 days of the making of this order, the plaintiff execute and lodge with the Registrar of Titles all documents necessary to effect a withdrawal of the caveats Nos. AB226484J and AB226485G.
3.The plaintiff pay the defendants' costs of the application, and of the proceeding, on an indemnity basis."
Rule 23.01 reads:
"Stay or judgment in proceeding
23.01(1) Where a proceeding generally or any claim in a proceeding –
(a) does not disclose a cause of action;
(b) is scandalous, frivolous or vexatious; or
(c) is an abuse of the process of the Court –
the Court may stay the proceeding generally or in relation to any claim or give judgment in the proceeding generally or in relation to any claim.
(2) Where the defence to any claim in a proceeding –
(a) does not disclose an answer; or
(b) is scandalous, frivolous or vexatious –
the Court may give judgment in the proceeding generally or in relation to any claim.
(3) In this Rule a claim in a proceeding includes a claim by counterclaim and a claim by third party notice, and a defence includes a defence to a counterclaim and a defence to a claim by third party notice."
Rule 23.03 reads:
"Summary Judgment for Defendant
23.03 On application by a defendant who has filed an appearance the Court at any time may give judgment for that defendant against the plaintiff if the defendant has a good defence on the merits."
The background to the application by the defendants may be summarised as follows.
Between 1980 and 1992 the first defendant was married to one Markandey Tiwari.
According to the first defendant she has known the plaintiff Dinesh Malhotra since 1989.
In 1991 Tiwari, the plaintiff and the plaintiff's brother Vinod Malhotra started a retail grocery business known as "Bharat Traders International". The first defendant has sworn that she was the only one who worked in the business at that time as the other three had "other jobs".
In late 1992 the first defendant and Markandey Tiwari were divorced and on 9 January 1993 the first defendant married the plaintiff.
In February 1993 the first defendant says she paid the plaintiff $11,000 for the grocery business and became the sole owner of it.
The first defendant and the plaintiff were divorced on 5 June 1995. It would appear from the material before the Court that the divorce was quite amicable and that there was no dispute between the parties concerning property. Certainly no applications were ever made to the Family Court concerning the parties' property.
In July 1995 the plaintiff went back to India where he married a woman named Renu Kapoor. He returned to Australia in about August 1995 and was joined here by his new wife in April 1996.
In July 1996 the first defendant incorporated the second defendant S. & D. International Pty Ltd ("S. & D.") and created a unit trust known as the S. & D. International Unit Trust ("the unit trust"). The first defendant is the sole unit holder in the unit trust.
Following the incorporation of S. & D. the grocery business was transferred to it as trustee of the unit trust.
In due course S. & D. acquired property at 580 Barkly Street, Footscray and a block of vacant land at Boronia Drive, Hillside.
In July 1999 the plaintiff was appointed a director of S. & D. He resigned on 29 September 1999. In his letter of resignation of that date the plaintiff stated: "At all times I was aware of the fact that I had no financial interest in the company."
In her affidavit of 31 October 2002 filed in the present proceeding the first defendant has sworn:
"Dinesh has never had any interest in S. & D. International Pty Ltd, the unit trust, or any of its assets and I have never led him to believe otherwise."
Despite the second named defendant's assertion and the document signed by the plaintiff on 29 September 1999, on 19 August 2002 the plaintiff filed a writ in the Court naming S. & D. and his former wife as defendants in which he claims to be a half owner of S. & D. and to have a half interest in the Footscray and Hillside properties.
It is necessary now to have regard to the divorce proceedings which were instituted against the plaintiff by his second wife Renu Kapoor in early 1999.
In his affidavit in response to Kapoor's application sworn 12 November 1999 and filed in the Family Court the plaintiff has stated:
·At the time I married (the first defendant) I transferred my interest in the business Bharat Traders International to (her) for the sum of $11,000 which was paid to me over several months.
·In 1996 Sheela (the first defendant) established the company S. & D. International Pty Ltd which purchased the property at 580 Barkly Street, Footscray.
·I do not have any interest in S. & D. International Pty Ltd. In June 1997 (the first defendant) was required to travel overseas for a short period. In June 1999 (the first defendant) appointed me a director to manage the business S. & D. International Pty Ltd while she was away. I was a director only and did not hold any interest in the company itself.
·
To the best of my knowledge (the first defendant) established the company
S. & D. International Pty Ltd in 1996. I have no involvement with that company apart from a short stint as a director. There are only two ordinary shares issued in respect of this company and both those shares have been beneficially held by (the first defendant). I have no beneficial or other interest in the company.
·I do not have any interest in the property at 580 Barkly Street, Footscray. Both the property and the company are owned by my ex-wife (the first defendant).
·I have no assets or other financial resources.
There are a number of similar statements in the affidavit to the same effect. In a number of other documents filed in the Family Court there are similar statements. No useful purpose is to be served by setting them out in my reasons.
On the face of it thus far, the plaintiff's present claims against the first defendant and S. & D. could not be more diametrically opposed to his testimony in the Family Court proceeding. Indeed if what the plaintiff now contends in the present proceeding is the true situation, it is almost unanswerable that the plaintiff committed perjury in the Family Court proceeding and in the process committed a fraud against his former wife and the Family Court itself.
In that situation it might well be argued that the present proceeding is an abuse of process in that it could well bring the administration of justice into disrepute. See Rogers v. The Queen[1].
[1](1994) 181 CLR 251
Regrettably that is not an end to the matter.
Although the plaintiff has not himself sworn an affidavit in opposition to the defendant's application, his solicitor has sworn an affidavit exhibiting a document entitled:
"S. & D. International Unit Trust (the Trust) T/tee for S. & D. International Pty Ltd (the Company)
Statement of Assets and Liabilities."
The statement is dated 16 October 2000 and bears the common seal of S. & D. International Pty Ltd. On the face of the document the seal purports to have been affixed by the first defendant as the "Sole Director"/ Secretary" of the company.
The clauses of the statement relevant for present purposes are clauses 5 and 6 which read:
"5.Despite what the documents show and contrary to the very obvious, the fact is that all assets, shares and other interests held and managed by the Company or the Trust and everything I have personally acquired and own, are owned equally (and jointly), fifty per cent each, between myself and Mr Dinesh Malhotra who currently lives with me at the above address and has been associated with the company in various capacities and with myself and business even before the company was formed.
6.Unless explicitly documented otherwise, any future acquisitions of the Company and/or the Trust and anything I acquire personally or for my children (or household) with finances used from the Trust or the Company directly or indirectly, will be held and owned as equal (and joint) owners as stated in clause 5."
The first defendant has denied on oath that the signature on the statement is hers (see paragraph 15 of her affidavit sworn 31 October 2002).
The report of a handwriting expert exhibited to the plaintiff's solicitor's affidavit of 18 November 2002 is to the effect that the signature on the statement purporting to be that of the first defendant, is in fact that of the first defendant. In reaching that conclusion the handwriting expert appears to have compared the signature on the statement with the first defendant's signature on other documents which undoubtedly have been signed by the first defendant.
In the light of the evidentiary material to which I have referred, it is simply not possible for me in dealing with the defendant's applications to determine where the truth of the matter lies. That must surely await the trial of the proceeding.
Whilst it may well be that the plaintiff committed perjury in the Family Court proceeding involving himself and Renu Kapoor, on the other hand there may be some explanation for his behaviour at that time.
In the circumstances I consider that it would be quite wrong to enter final judgment against the plaintiff at this stage of the proceeding. In my opinion the proceeding must go to trial.
The defendants' summons filed in the Court on 1 November 2002 is dismissed. In the circumstances I consider that the appropriate order to make concerning the costs of the application is that they be the parties' costs in the cause.
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