Nachmias v Carmel Grove Pty Ltd
[2000] VSC 9
•19 January 2000
SUPREME COURT OF VICTORIA
PRACTICE COURT Do not Send for Reporting Not Restricted
No. 7185 of 1998
| VIGAL NACHMIAS | Plaintiff |
| v. | |
| CARMEL GROVE PTY. LTD. | Defendant |
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JUDGE: | BEACH, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 23 DECEMBER 1999 | |
DATE OF JUDGMENT: | 19 JANUARY 2000 | |
CASE MAY BE CITED AS: | NACHMIAS v. CARMEL GROVE PTY. LTD. | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 9 | |
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CATCHWORDS: Practice and Procedure – Application to set aside orders made in the absence of a party – No sound basis for setting them aside – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | In Person | |
| For the Defendant | Mr. T.R. Messer | Jerrard & Stuk |
HIS HONOUR:
By his statement of claim in this proceeding the plaintiff Yigal Nachmias alleges that between 1995 and April 1998 he lived as husband and wife in a de facto relationship with Jasmine Berger.
The statement of claim alleges that in late 1986 or early 1987 the plaintiff and Berger agreed that they would jointly purchase a home. I assume that those dates are erroneous and should read 1996 and 1997 respectively.
In either late 1996 or early 1997 they purchased a house at 85 Bealiba Road, Caulfield, for the sum of $382,000.
The house was purchased in the name of the defendant Carmel Grove Pty Ltd, a company of which Berger is the sole shareholder and director.
After the plaintiff and Berger separated, and on 3 July 1998, the plaintiff caused caveat No. V518165H to be lodged in the Office of Titles whereby the plaintiff claimed an estate in fee simple in the property pursuant to a constructive trust.
On 14 September 1998 the plaintiff filed a writ in the court whereby he sought the following relief:
A. A declaration that the interest held by the Defendant in the property is held by it as trustee for the Defendant and the Plaintiff equally or the Defendant and Berger equally or in such proportions as the Court may determine.
B. Alternatively, a declaration that at all material times the Defendant held the property in fee simple on trust for the Plaintiff and the Defendant in equal shares alternatively for the Plaintiff and Berger in equal shares or in such proportion as the Court may determine.
C. An order that the property be sold and the proceeds be divided between the Plaintiff and the Defendant in equal proportions or in such proportion as the Court may determine.
D. The Defendant pay the Plaintiff an amount equal to his contribution to the property.
E. Damages.
On 26 October 1998 Cohen Woolf & Weinberg (the plaintiff's solicitors) filed a notice in the court that they were now acting on behalf of the plaintiff in lieu of his original solicitors.
On 29 March 1999 the defendant filed its defence and counterclaim in the proceeding. By its counterclaim the defendant sought the following orders:
(a)That the Plaintiff, at his expense forthwith caused the said Caveat to be removed and/or withdrawn from the Title to the property.
(b) Damages.
(c)An Order that the Plaintiff and/or his solicitor pay the Defendant's costs.
On 13 April 1999 and by consent of the solicitors for the parties Master Bruce made a number of interlocutory orders in the proceeding.
The orders relevant for present purposes are the Master's orders that the plaintiff file any reply or defence to counterclaim by 4 p.m. On 21 May 1999, and that by 4 p.m. On 16 July 1999 the plaintiff give discovery of documents.
The plaintiff did not comply with the Master's order relating to the filing of a reply and defence to counterclaim and on 5 July 1999 the defendant made application to Master Wheeler for an order that the plaintiff remove the caveat he had lodged over the title to the property.
The application was made without notice to the plaintiff or the plaintiff's solicitors. In that regard see Rule 21.04(2) of the Supreme Court Rules.
That day the Master made the following orders in the proceeding:
1.The Plaintiff forthwith remove the caveat number V518165H lodged on 3 July 1998 in relation to Certificate of Title Volume 8970 Folio 446.
2.The Plaintiff pay the Defendant damages to be assessed and costs (including the cost of the application for judgment made this day) to be taxed.
On or about 22 July 1999 the defendant's solicitors served a notice of default in making discovery of documents on the plaintiff's solicitors.
The plaintiff did not comply with the notice and on 5 August 1999 the defendant's solicitors filed a summons in the court seeking (inter alia) that the plaintiff's claim be dismissed. The summons was served on the plaintiff's solicitors.
The summons came before Master Wheeler on 6 September 1999. There was no appearance of the plaintiff or his solicitors before the Master. The Master declined to make an order dismissing the plaintiff's claim but ordered instead that unless within seven days of service of a copy of the order on the plaintiff's solicitors the plaintiff make discovery of documents the proceeding be dismissed.
The plaintiff did not comply with the order and on 28 October 1999 the defendant's solicitors filed a further summons in the court seeking to have the plaintiff's claim dismissed.
The summons came before Master Wheeler on 17 November 1999. Once again there was no appearance by the plaintiff or his solicitors before the Master. That day the Master ordered that the proceeding be dismissed.
On 15 December 1999 the plaintiff personally filed a notice in the court seeking leave to appeal out of time against the orders of the Master of 5 July 1999 and 17 November 1999.
The application was returnable before the Practice Court on 17 December 1999. On the morning of that day the plaintiff's solicitors filed a notice in the court that they had ceased to act for the plaintiff.
When the plaintiff's application was called on in the Practice Court on 17 December there was no appearance of the plaintiff.
On the application of counsel for the defendant I made an order that the plaintiff's application be dismissed.
It subsequently transpired that the plaintiff was in the precincts of the court that day but was unaware of the fact that he was required to attend in the Practice Court.
On 20 December 1999 the plaintiff personally filed a summons in the court whereby he sought an order that my order of 17 December 1999 be set aside and that his appeal be reinstated.
The plaintiff's summons came before me in the Practice Court on 23 December 1999. The plaintiff appeared in person.
I informed the plaintiff that if he could satisfy me that he had an arguable case so far as his appeal was concerned, I would set aside my order of 17 December 1999 and reinstate his appeal.
The only argument advanced on behalf of the plaintiff in relation to his appeal was that as he had had no knowledge of the orders made against him by the Master his appeal should succeed and the orders should be set aside.
In my opinion, of itself, that is no basis for setting aside orders which have been validly made by a Master of the court.
In the first place the plaintiff has made no effort to place before the court material affording an explanation for his failure to comply with the order for delivery of his defence to the defendant's counterclaim and for the orders for discovery. Even at this late stage the plaintiff has made no effort to swear and file an affidavit of documents.
The order as to the filing of a defence to counterclaim was made with the consent of the plaintiff's solicitors.
In the circumstances of this case, to justify setting aside the order made by the Master made on 5 July 1999 the plaintiff would be required to demonstrate that at the least he has a defence on the merits to the defendant's counterclaim.
In my opinion he has not done so.
In an affidavit sworn by him on 15 December 1999 the plaintiff has made it clear that it was the defendant's money which was used to buy the Caulfield property. (See paragraph 2 on the second page of the affidavit.) .
In that situation it is difficult to see how the plaintiff can successfully contend that the property is held in trust for him by the defendant.
The total lack of information provided to the court concerning the plaintiff's failure and that of his solicitors to attend the court in answer to the summonses filed on behalf of the defendant and to comply with the Master's orders, leaves one almost entirely in the dark in the matter.
Whilst one may speculate that the plaintiff's solicitors may have been negligent in their handling of the case that may very well not be the situation.
If they have been, and the plaintiff ultimately suffers loss by reason of that negligence, then the plaintiff will have a good cause of action against them.
In the circumstances I am not persuaded that it is appropriate to now set aside my order of 17 December 1999.
The plaintiff's summons filed in the court on 20 December 1999 is dismissed, with costs to be taxed and paid by the plaintiff.
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