Mitrov Homes Pty Ltd v Mustafa (No 3) - [2023] VSC 402

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

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JUDGE:	Connock J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 July 2023
DATE OF RULING :	7 July 2023 Ex tempore; revised 10 July 2023
CASE MAY BE CITED AS:	Mitrov Homes Pty Ltd v Mustafa (No 3)
MEDIUM NEUTRAL CITATION:	[2023] VSC 402

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COSTS — Interlocutory application to set aside dismissal of claim against first defendant as a result of failure to comply with a self-executing order — Application for extension of time to comply with self-executing order — Application opposed — Application successful — Orders made setting aside the dismissal judgment resulting from the triggering of a self-executing order — Orders made extending the time, nunc pro tunc, to comply with self-executing order — Costs not to follow the event — Luxmore Pty Ltd v Hydedale Pty Ltd (2008) 20 VR 481 referred to — Plaintiff to bear its own costs of the application — First defendant’s costs of the application to be his costs in the proceeding.

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

HIS HONOUR:

Introduction

On 7 July 2023 I delivered my reasons for decision[1] in this proceeding (Reasons) determining the plaintiff’s application (Application) to:
[1]Mitrov Homes Pty Ltd v Mustafa (No 2) [2023] VSC 386.

(a) extend the time (now for then) by which the plaintiff was required to provide security for the first defendant’s (Mr Mustafa) costs pursuant to orders made on 21 February 2023:

(i) extending the time by which the plaintiff was to provide $62,000 security for Mr Mustafa’s costs (Security) to 4:00pm on 17 March 2023 (Security Extension Order); and

(ii) ordering that if the Security was not provided by 4:00pm on 17 March 2023 (Security End Date), the plaintiff’s claim against Mr Mustafa is dismissed (SE Order); and

(b) set aside the dismissal of the plaintiff’s claim against Mr Mustafa that resulted from the triggering of the SE Order by reason of the plaintiff’s failure to provide the Security by the Security End Date.

The Application was opposed by Mr Mustafa. The second defendant, Ms Loci, is self‑represented and took no position on the Application. Ms Loci did not appear at the hearing or at the directions hearing on 7 July 2023 when the Reasons were delivered, argument was heard in relation to costs, and directions were made regarding the future conduct of the proceeding.

The Application was successful and, subject to the plaintiff paying the Security into court by 4:00pm on 10 July 2023, orders were made extending the time by which the plaintiff is to provide…

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: [2023] VSC 402
Decision Date: 7 July 2023 Ex tempore; revised 10 July 2023

CaseChat Overview and Summary

Mitrov Homes Pty Ltd initiated legal action against Mustafa, the first defendant, and other parties. The dispute involved the first defendant's failure to comply with a self-executing order, resulting in the dismissal of the claim against him. Mitrov Homes applied for the dismissal to be set aside and sought an extension of time to comply with the self-executing order. The application was opposed by the other defendants. The court had to determine whether the dismissal of the claim against the first defendant should be set aside and if the application for an extension of time to comply with the self-executing order should be granted. Additionally, the court needed to decide on the costs implications of the application.

The court found that the dismissal of the claim against the first defendant should be set aside and the application for an extension of time to comply with the self-executing order should be successful. The court relied on the principles established in Luxmore Pty Ltd v Hydedale Pty Ltd, which emphasised that the dismissal of a claim should be set aside if the failure to comply with a self-executing order was not due to the fault of the party seeking relief. The court also found that the first defendant's opposition to the application was not strong enough to warrant a refusal of the extension of time. Consequently, the court made orders setting aside the dismissal judgment resulting from the triggering of the self-executing order and extending the time, nunc pro tunc, to comply with the self-executing order. The court ruled that costs were not to follow the event and that Mitrov Homes was to bear its own costs of the application. Furthermore, the first defendant's costs of the application were to be his costs in the proceeding.

The final orders of the court were that the dismissal of the claim against the first defendant was set aside, and the application for an extension of time to comply with the self-executing order was granted. Mitrov Homes was to bear its own costs of the application, and the first defendant's costs of the application were to be his costs in the proceeding. The court's decision ensured that the dismissal was rectified due to the non-fault nature of the failure to comply with the self-executing order, and it addressed the costs implications in a manner consistent with the principles established in Luxmore Pty Ltd v Hydedale Pty Ltd.

Orders