Murch v Annesley - [2020] VSC 837

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
GENERAL LIST

S ECI 2019 05761

ROBERT GEORGE MURCH (and others according to schedule)	Plaintiffs
v
DAVID PAUL ANNESLEY (and others according to the schedule attached)	Defendants

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JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 August 2020
DATE OF JUDGMENT:	11 December 2020
CASE MAY BE CITED AS:	Murch & Ors v Annesley & Ors
MEDIUM NEUTRAL CITATION:	[2020] VSC 837

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PRACTICE AND PROCEDURE – Vexatious litigation – Extended litigation restraint order Vexatious Proceedings Act 2014 (Vic) – Acting in concert orders.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr D C Harrison	Wilkinson Lawyers
For the First Defendant	Self-represented
For the Second and Sixth Defendants	Mr P Annesley
For the Fourth and Fifth Defendants	No appearance

HER HONOUR:

This is an application by private individuals for Extended Litigation Restraint Orders under the Vexatious Proceedings Act2014 (Vic) (‘the Act’) against six defendants. The circumstances arise from the purchase by the third plaintiff of property which had been owned by the second defendant.

Sharlene Annesley was the registered proprietor of property at 325 Wildwood Rd, Bulla (‘the property’). She had entered an agreement with Wayne Johnstone and his company, Bankseea Pty Ltd (‘Bankseea’) in August 2013 for the sale of the property. ANZ had loaned funds to Johnstone and Bankseea who did not honour the loans. ANZ had commenced litigation in relation to the property in the County Court against Johnstone and Bankseea obtaining judgment in default for possession of the property. It proceeded to sell it as mortgagee in possession. Robert Murch purchased property in September 2018 through his company, R. G. Murch Nominees Pty Ltd (‘Murch Nominees’), from the ANZ bank as mortgagee in possession.

Prior to the sale by ANZ, Paul, Sharlene and Susan Annesley, had been involved in litigation over the property in the Supreme Court, detailed below. They asserted that, because of non-payment of the purchase price by Bankseea and the conduct of Johnstone and ANZ they retained ownership of the property. Since purchase the plaintiffs and others of their friends and family have had a number of proceedings brought against them by some or all of the defendants.

The application is opposed by the first, second, third and sixth defendants who were all represented by Paul Annesley himself. The fourth and fifth defendants did not appear.

Paul Annesley filed an application for a stay of this proceeding pending outstanding criminal charges and made an adjournment application on the same basis. The adjournment or stay application was opposed by the plaintiffs and will be refused. For the reasons that follow I will order that Paul Annesley, Sharlene Annesley and Susan Annesley be subject to ELROs (extended litigation restraint orders). I will not make litigation restraint orders in relation to the fourth, fifth and sixth defendants. I am not satisfied that the Court is able at this time to grant the alternative relief of acting in concert orders under…

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 Murch v Annesley

Details

AGLC: Murch v Annesley [2020] VSC 837
Case: [2020] VSC 837
Decision Date: 11 December 2020

CaseChat Overview and Summary

In the case of Murch v Annesley, the plaintiffs sought to enforce an extended litigation restraint order against the defendants, seeking to prevent them from continuing their litigation activities, which the plaintiffs claimed were vexatious. The matter was heard in the Supreme Court of Victoria. The plaintiffs alleged that the defendants had engaged in a series of litigation actions against them, including proceedings in various jurisdictions, which were repetitive, without merit, and intended to harass or oppress the plaintiffs. The court was required to determine whether the defendants' litigation activities constituted vexatious litigation and whether an extended litigation restraint order was warranted under the Vexatious Proceedings Act 2014 (Vic).

The court examined the criteria for determining vexatious litigation, including whether the proceedings were frivolous, had no reasonable prospect of success, or were being pursued for an improper purpose. The defendants argued that their actions were legitimate and based on valid legal grounds. However, the court found that the defendants' litigation activities met the criteria for vexatious litigation. The court noted the extensive history of litigation between the parties, the lack of merit in many of the claims, and the defendants' persistent pursuit of the plaintiffs despite clear indications of futility.

The Supreme Court of Victoria granted the extended litigation restraint order, prohibiting the defendants from instituting or continuing any proceedings against the plaintiffs without the court's permission. Additionally, the court made acting in concert orders, preventing the defendants from using third parties to circumvent the order. This decision underscores the court's commitment to protecting litigants from the detrimental effects of vexatious litigation.

Orders