Mitrov Homes Pty Ltd v Mustafa (No 2) - [2023] VSC 386

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

COMMERCIAL LIST

S ECI 2019 05718

MITROV HOMES PTY LTD (ACN 618 226 247)	Plaintiff
v
BUJAR MUSTAFA	First Defendant
NEZ LOCI	Second Defendant

---

JUDGE:	Connock J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 June 2023
DATE OF JUDGMENT:	7 July 2023
CASE MAY BE CITED AS:	Mitrov Homes Pty Ltd v Mustafa (No 2)
MEDIUM NEUTRAL CITATION:	[2023] VSC 386

---

PRACTICE AND PROCEDURE — Application to set aside judgment given pursuant to a self-executing order — Failure to pay security for costs — Extension of time sought to comply with a self-executing order that has become operative and dismissed the proceeding against a defendant — Self-executing orders made by consent — Discretion to extend time for compliance — Power to set aside or vary an order or judgment — Power to set aside or vary any order for security for costs — Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 3.02, 24.05, 24.06, 62.05 — General principles regarding extensions of time and applications pursuant to Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 24.06 — Whether unjust to deny plaintiff a trial — Effect of consent orders — Consent orders general observations — Jorgensen v Slater & Gordon Pty Ltd [2008] VSCA 110 — R D Werner & Co v Bailey Aluminium Products Pty Ltd (1988) 18 FCR 389 — Siebe Gorman and Co Ltd v Pneupac Ltd [1982] 1 WLR 185 — Mighty River International Ltd v Mineral Resources Ltd [2020] WASCA 44 — Time to comply with self-executing order extended — Considerations under ss 7, 8 and 9 of the Civil Procedure Act 2010 (Vic) — Application to set aside judgment and extend time to provide for security for costs successful — Undertaking to pay security for costs into court — Conditional relief granted.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	J Levine	Maciel Pizzorno & Co Lawyers & Consultants
For the First Defendant	C Fitzgerald	CAV Law Pty Ltd
For the Second Defendant	No Appearance	Self-represented

TABLE OF CONTENTS

Introduction and Summary............................................................................................................. 1

Brief background, the plaintiff’s claim, and Mr Mustafa’s counterclaim.............................. 4

Affidavit material.............................................................................................................................. 7

..... Affidavits filed on behalf of the plaintiff................................................................................... 7

..... Affidavits filed on behalf of Mr Mustafa................................................................................ 11

Submissions...................................................................................................................................... 14

..... Plaintiff’s submissions............................................................................................................... 14

..... Mr Mustafa’s submissions......................................................................................................... 19

Relevant rules, principles and observations.............................................................................. 26

..... Rules 3.02, 24.05 and 24.06........................................................................................................ 26

..... Some relevant case law.............................................................................................................. 27

Consideration and disposition..................................................................................................... 38

Rules 3.02 and 24.06 are engaged and the court’s discretion is enlivened......................... 39
Exercise of the court’s discretion in the circumstances......................................................... 40
Circumstances in which the Security Extension Order and SE Order were made.. 41
Reason why the plaintiff failed to comply with the Security Extension Order and the SE Order was triggered.............................................................................................. 44
Comparative prejudice of the plaintiff and Mr Mustafa............................................. 48
Additional matters............................................................................................................ 52
Exercise of discretion conclusion.................................................................................... 36

Conclusion and proposed orders.................................................................................................. 56

HIS HONOUR:

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.

Keep reading for free

Create a free CaseChat account to read Mitrov Homes Pty Ltd v Mustafa (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] VSC 386
Decision Date: 7 July 2023

CaseChat Overview and Summary

Mitrov Homes Pty Ltd sought relief against Mustafa in the County Court of Victoria, challenging a self-executing order that had been made by consent between the parties. The primary issue arose from the plaintiff's failure to provide security for costs within the specified timeframe. Consequently, the defendant applied to enforce the self-executing order, which resulted in the dismissal of the plaintiff's proceeding against the defendant. The plaintiff subsequently sought to set aside the judgment and obtain an extension of time to comply with the self-executing order. The court had to determine whether it was just to deny the plaintiff the opportunity to have their case heard and if extending the time for compliance would be in the interests of justice.

The court examined the principles governing extensions of time and applications under Supreme Court (General Civil Procedure) Rules 2015 (Vic) rule 24.06. It considered the effect of consent orders and the circumstances under which an order or judgment might be set aside or varied. The court also referenced precedents such as Jorgensen v Slater & Gordon Pty Ltd and R D Werner & Co v Bailey Aluminium Products Pty Ltd, which underscored the discretionary nature of the court's power to extend time or set aside orders. The court emphasised that while consent orders generally bind the parties, the power to relieve a party from the consequences of their own default exists to ensure justice is served. The court further noted the importance of balancing the interests of both parties and the overarching objective of achieving a just outcome.

In reaching its decision, the court balanced the principle of finality of judgments against the need for procedural fairness. The court found that it was not unjust to grant the plaintiff an opportunity to provide security for costs, given the consent order had not yet been fully enforced. The court considered the plaintiff's undertaking to pay the required security into court as a satisfactory condition to grant relief. The court's discretion was exercised in a manner that aligned with the statutory provisions of the Civil Procedure Act 2010 (Vic), ensuring that justice was achieved in the circumstances. Consequently, the court set aside the judgment and extended the time for the plaintiff to provide security for costs, subject to the condition that the security be paid into court.

The final orders included the setting aside of the judgment against the plaintiff and the granting of an extension of time to comply with the self-executing order. The plaintiff was required to deposit the security for costs into court within a specified period, subject to the defendant's right to apply for costs if the security was not paid within the stipulated time. This conditional relief was designed to ensure that the interests of both parties were fairly balanced while allowing the plaintiff an opportunity to pursue their claim.

Orders