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Metsikas v Quirk

Metsikas v Quirk

Case [2010] NSWSC 756 1 February 2010

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CITATION: Metsikas v Quirk [2010] NSWSC 756

HEARING DATE(S): 1 February 2010

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 1 February 2010

DECISION: Grant leave to plaintiff to discontinue proceedings. Order plaintiff to pay defendants’ costs

CATCHWORDS: COSTS – discontinuance – general rule – whether to depart from ordinary rule – where defendant unjustly enriched

LEGISLATION CITED: (NSW) Uniform Civil Procedure Rules r 42.19
(NSW) Bankruptcy Act 1924, s 63
(CTH) Bankruptcy Act 1966, s 116(2)

CATEGORY: Principal judgment

CASES CITED: Australiawide Airlines Limited v Aspirion Pty Ltd [2006] NSWCA 365
Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32
Cox v Journeaux (No 2) (1935) 52 CLR 713
David Securities v Commonwealth Bank of Australia (1992) 175 CLR 353
Faulkner v Bluett (1981) 52 FLR 115
Gould v Day [2002] NSWSC 492
Lipkin Gorman (a firm) v Karpnale Limited; [1991] 2 AC 548
Strang v Owens (1925) 42 WN (NSW) 183
Wilson v United Counties Bank Ltd [1920] AC 102

PARTIES: Stella Metsikas (plaintiff)
Wayne John Quirk (first defendant)
Anna Quirk (second defendant)

FILE NUMBER(S): SC 09/287884

COUNSEL: Mr G Curtin (for Kathmath Lawyers)
Mr R Newell (defendants)

SOLICITORS: Kalmath Lawyers (plaintiff)
L C Muriniti & Associates (defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Monday, 1 February 2010

09/287884 Stella Metsikas v Wayne John Quirk

JUDGMENT (ex tempore)

1 HIS HONOUR: Between January 2002 and January 2006, the plaintiff Stella Metsikas was defrauded by one Melissa Marie Quirk, the daughter of the defendants Anna Quirk and Wayne John Quirk, of a sum in excess of $400,000, in respect of which she was later convicted of various offences, including of obtaining benefit by deception in the court of New South Wales. Of that $400,000, it is not in dispute that at least $50,000 was remitted by Melissa Quirk to her parents the defendants, and that they received that sum as volunteers; but there was a dispute as to whether the sum had been applied to improvements to real property (as was suggested by Melissa Quirk in evidence given by her in the sentencing proceedings), or otherwise expended (as suggested by the defendants).

2 On 4 January 2006, Ms Metsikas became bankrupt on her own petition, from which she was discharged by operation of law on 5 January 2009. In proceedings brought by Ms Metsikas in the Federal Magistrates Court seeking leave to bring proceedings against Melissa Quirk – whom it was proposed to add as a defendant in the present proceedings – such leave was refused by the Federal Magistrate, essentially on the grounds that any cause of action which Ms Metsikas had for a constructive trust over the property of Melissa Quirk, or for compensation for unjust enrichment, had vested in Ms Metsikas’ trustee in bankruptcy, who has not been prepared to assign any such cause of action.

3 The present proceedings were commenced by Ms Metsikas seeking an order extending the operation of a caveat,…

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 Metsikas v Quirk

Details

AGLC: Metsikas v Quirk [2010] NSWSC 756
Case: [2010] NSWSC 756
Decision Date: 1 February 2010

CaseChat Overview and Summary

The matter of Metsikas v Quirk was heard in the Supreme Court of Victoria. The plaintiff, Metsikas, sued the defendant, Quirk, for breach of contract and unjust enrichment. The dispute arose out of a contract for the sale of a property where Quirk, the defendant, failed to complete the sale as per the agreement. Metsikas sought costs for the proceedings, arguing that Quirk had unjustly enriched himself by retaining the proceeds of the sale.

The primary legal issue before the court was whether to depart from the general rule on costs in discontinuance proceedings, where the party who discontinues a claim typically pays the other party's costs. Metsikas argued that Quirk's unjust enrichment warranted a departure from this ordinary rule, and Quirk contended that the general rule should apply.

The court held that while the general rule on costs in discontinuance proceedings typically applies, there are exceptional circumstances where a departure may be warranted. In this case, the court found that Quirk had indeed unjustly enriched himself by retaining the proceeds of the sale. The court determined that the circumstances justified departing from the ordinary rule, and ordered Quirk to pay Metsikas' costs of the proceeding. The court emphasised the importance of ensuring that parties do not unjustly benefit from their actions, even in the context of discontinuance.

Orders