Nicolai Simonov

[2020] VCC 889

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMERCIAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-20-00667

NIKOLAI SIMONOV	Plaintiff
v
TIMOTHY McDONALD	Defendant

---

JUDGE:	LEWITAN
WHERE HELD:	Melbourne
DATE OF HEARING:	24 June 2020
DATE OF RULING:	24 June 2020
CASE MAY BE CITED AS:	Nicolai Simonov
MEDIUM NEUTRAL CITATION:	[2020] VCC 889

REASONS FOR RULING
---

Subject:         Summons for pretrial discovery and injunction              

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No appearance
For the Defendant	B Fry	McDonald Lawyers

HER HONOUR:

1 By originating motion dated 15 February 2020 Nikolai Simonov (Simonov) sought pretrial discovery of certain documents pursuant to rule 32.03 of the County Court Civil Procedure Rules (2018) (the County Court Rules). 

2       Simonov also sought an order restraining the defendant from transferring, dealing with, or disposing of deposit monies held in the defendant’s trust account for the purchase of lots in the development of a property located at 1027 Nepean Highway, Moorabbin (the property).

Background

3       Simonov was the registered proprietor of the property. In December 2016 Simonov entered into a joint venture agreement (the joint venture agreement) with Michael Libman (Libman) and Julian Ulis (Ulis) for the purpose of developing the property into 8 residential lots. (the development).[1]  Certain residential lots were sold off the plan.

[1] Paragraph 6, affidavit made by Nikolai Simonov on 15 February 2020 (Simonov’s affidavit)

4       The defendant carries on a law practice trading as McDonald Lawyers. 

5       In or around the end of 2018 or early 2019 the development began to experience problems.  The builder had to be replaced which delayed the project and the relationship between Simonov, Libman and Ulis began to deteriorate.[2]

[2] Paragraph 16, Simonov’s affidavit.

6       Simonov states that certain sums were withdrawn from the joint venture bank account and made payable to the defendant.[3]

[3] Paragraph 26, Simonov’s affidavit.

7       On 11 January 2020 Simonov was advised that the defendant had issued a writ in the County Court in which the defendant claimed that the sum of $307,475 had been transferred from the joint venture bank account to Ulis by mistake.[4]  The defendant issued County Court Proceeding  number CI-19-06180 when Ulis refused to return the funds. 

[4] Paragraph 29, Simonov’s affidavit.

8 The plaintiff issued a summons on 15 February 2020 (the plaintiff’s summons) pursuant to Order 32.03 of the County Court Civil Procedure Rules (2018) (the County Court Rules) seeking discovery of certain documents relating to the development of the property, the bank statements in relation to the receipt and withdrawal of deposit monies paid by purchasers of the residential lots in the development and all documents in relation to County Court Proceeding no. CI-19-06180  filed by the defendant against Ulis.

9       The plaintiff also sought an order restraining the defendant from transferring, dealing with or disposing of or otherwise encumbering or removing from Australia any deposit moneys held by the defendant for the purchase of the residential lots in the development.

Procedural History

10      On 5 March 2020 Judge Marks made orders for the delivery of the documents referred to in the plaintiff’s summons within 7 days.  Judge Marks ordered that the further hearing of the summons be adjourned to 19 March 2020 before the Commercial Division Duty Judge.

11      On 18 March 2020 I made orders by consent in the following terms:

1         From the date of this order, where deposit moneys are received by the defendant or until the return of any deposits to the respective purchasers, or until further order, the defendant whether by himself, his servants or agents or any of them or otherwise howsoever, be restrained from dealing with or disposing of or otherwise encumbering or removing or causing to be removed from Australia any of the deposits other than by paying any such moneys that are received to the County Court of Victoria, in accordance with paragraph 2 below.

2. In the event that any deposit monies are received by the defendant then, as soon as practicable after receipt, the defendant shall file a summons pursuant to r12.02 of the County Court Civil Procedure Rules 2018.

3.        The defendant will deliver up the documents that are yet to be delivered pursuant to the General Form of Order made by the Court on 4 March 2020 by email transmission to [email protected] within 7 days.

4.        The further hearing of the plaintiff’s summons filed on 18 February 2020 is adjourned to 10.00am on 2 April 2020 before the Commercial Division Duty Judge (estimate 1 hour).

5.        Costs reserved.

12      On 1 April 2020 Judge Ryan adjourned the hearing of the plaintiff’s summons by consent to 29 April 2020.

13      On 12 May 2020 I made orders for the plaintiff’s solicitors to file a notice of ceasing to act and extended the dates for service of the parties written submissions.  I ordered that the plaintiff file and serve his written submissions by 29 May 2010, that the defendant file and serve his written submissions in reply by 3 June 2020 and that the plaintiff file and serve any submissions in reply to the defendant’s submissions by 9 June 2020.  I also ordered that the plaintiff’s summons would thereafter be determined on the papers.

14      On 27 May 2020 Judicial Registrar Burchell confirmed that the plaintiff’s summons would be determined on the papers after 9 June 2020.

15      The plaintiff did not file and serve any written submissions.  The defendant filed and served his written submissions on 9 June 2020.

16      The defendant submits that on 5 and 18 March 2020 the defendant made discovery in compliance with the orders made by Judge Marks on 5 March 2020. 

17      The defendant submits that since 18 March 2020 the plaintiff has not identified any further particular documents in addition to the documents discovered by the defendant.

18      The defendant submits that the relief sought against the defendant was in the nature of orders for preliminary discovery.  On 5 Judge Marks made orders for the discovery of the documents referred to in the plaintiff’s summons. The defendant submits that the orders were complied with on 5 and 18  March 2020. The defendant submits that the orders having been made, and discovery given, that aspect of the summons has been disposed of.   As the plaintiff has not made further written submissions in accordance with the orders made by the Court on 12 May 2020, I accept the defendant’s submissions that as orders have been made in relation to the plaintiff’s application for preliminary discovery, that aspect of the summons has been disposed of.

19      However the plaintiff’s summons also sought orders restraining the defendant from transferring, dealing with or disposing of deposit monies.    As stated in the above paragraph 3, I made orders by consent restraining the defendant from dealing or disposing of any deposit moneys received by the defendant for the purchase of lots in the development at 1027 Nepean Highway, Moorabbin.  The defendant did not address this matter in his written submissions made 9 June 2020.

20      I make no order in relation to the injunction granted against the defendant by consent on 18 March 2020.  I order that the costs of the plaintiff’s summons be reserved and reserve liberty to apply.  I direct that the proceeding be listed for an administrative mention on 21 July 2020.