Omer Aydin v Driye Aydin
[2019] VCC 1743
•29 October 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-16-04916
| Omer Aydin | Plaintiff |
| v | |
| Driye Aydin & Adem Aydin | Defendants |
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JUDGE: | His Honour Judge Woodward | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 October 2019 | |
DATE OF RULING: | 29 October 2019 | |
CASE MAY BE CITED AS: | Omer Aydin v Driye Aydin & Anor | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1743 | |
REASONS FOR RULING
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | No appearance | |
For the first defendant | No appearance | |
| For the second defendant | In person |
HIS HONOUR:
1 The plaintiff and second defendant are brothers, and the first defendant is their mother. On 14 June 2019 I heard an application by the plaintiff for orders effectively seeking to reopen both a settlement agreement between the parties made on 22 September 2017 (“Settlement Terms”) and consequential orders for the enforcement of the Settlement Terms. I delivered reasons that day for dismissing that application. Those reasons include a summary of the history of the proceeding, they explain the circumstances of the settlement and they set out the orders made by Judicial Registrar Burchell on 21 December 2017 enforcing the terms of settlement (“21 December Orders”). I won’t repeat those matters in these reasons.
2 The proceeding is again before the court, on this occasion on an application by the second defendant seeking, at least in part, the same relief as sought by the plaintiff on 14 June 2019. In particular, he seeks to review out of time (by over 18 months) the decision of JR Burchell reflected in the 21 December Orders.
3 However, on reviewing his summons dated 2 October 2019, his notice seeking review of the Judicial Registrar’s order and his supporting affidavits sworn 1 and 2 October 2019, I am satisfied that for the most part his application goes further than it needs to. I say for the most part, because the second defendant did expressly seek to overturn the JR Burchell’s costs order made as part of the 21 December Orders. Except for that particular order, what the second defendant is in substance seeking is not to review the other orders, but new orders dealing with aspects of the Settlement Terms not covered by the 21 December Orders.
4 So far as the plaintiff and second defendant were concerned, apart from the usual releases and other provisions dealing with mechanical issues, there were essentially two parts to the Settlement Terms. The first part was the agreement by the defendants to pay the plaintiff $125,000 by no later than 23 October 2017. The second part was the agreement by the plaintiff on or before 23 October 2017 to do all things necessary to transfer a property at Golden Beach (certificate of Title Volume 08335 folio 942) (“Golden Beach property”), into the name of the second defendant. Importantly, both the payment and the transfer were due to occur on the same date.
5 It appears that neither of these things happened. This is what led to the plaintiff (then represented by his solicitor Mr G Goldsmith) appearing before JR Burchell on 21 December 2017, seeking orders enforcing payment of the $125,000. From what I have been able to ascertain from the second defendant (who was unrepresented before JR Burchell) and my own enquiries, the issue of the transfer of the Golden Beach property was raised during that hearing, and Mr Goldsmith informed the Judicial Registrar that the transfer of the Golden Beach property would be executed and delivered on payment of the $125,000 as required by the 21 December Orders. However, no orders were made about the Golden Beach property.
6 As things transpired (and as explained in my earlier reasons) the defendants later paid $85,000 towards the $125,000 as contemplated by the 21 December Orders, but did not pay the balance. In around March 2018, the plaintiff issued a warrant of seizure and sale for the sum of the balance, plus costs and interest (totalling $44,756.55), but is seems that warrant later expired without being executed. The plaintiff has on 28 August 2019 issued a fresh warrant (“Second Warrant”), for the sum claimed in the earlier warrant, plus a further $7,443.08 for interest and $285.74 for the costs of the warrant (totalling $52,494.37). It is not clear what stage the enforcement of that Second Warrant has reached.
7 For his part, the second defendant has by this application now formally raised the fact that the plaintiff has failed to comply with his side of the Settlement Terms by transferring the Golden Beach property, and has adduced evidence (in the form or a notice of council revaluation dated 22 May 2019) that the Golden Beach property has a capital improved value of $42,000 which (as the second defendant notes) is close to the balance of the sum payable by the defendants to the plaintiffs under the Terms of Settlement.
8 Indeed, given that council valuations of capital improved value are notoriously lower than actual value, it may be that the Golden Beach property is worth more than the balance payable to the plaintiff under the Settlement Terms. On the other hand, if (as I understand to be the case) the plaintiff and second defendants are currently tenants in common in equal shares of the Golden Beach property, perhaps the plaintiff’s share is worth less that the balance payable.
9 In any event, the parties are at a stalemate. The plaintiff is seeking the balance of the $125,000 payable by the defendants under the Settlement Terms through the issue of the Second Warrant. And the second defendant is now seeking (in effect) orders enforcing the plaintiff’s obligation to transfer the Golden Beach property. For his part, the plaintiff would (I assume) resist any order seeking to effect that transfer while the balance of the $125,000 plus costs and interest is unpaid.
10 I note in passing that the plaintiff did not appear at the hearing today (the matter was called inside and outside court). The second defendant swore a third affidavit dated 25 October 2019 deposing that he served the notice seeking review, summons and supporting affidavits on the plaintiff by sending them by registered post to his “address for service”. He told me from the Bar table that he checked with the post office and was told that the registered letter was not delivered, but that it was later collected from the post office. This is self-evidently inadequate evidence of service, but I am hopeful that by the court sending the orders I will make today and these reasons to the plaintiff to the email address he supplied when he was before the court on 14 June 2019, that he will appear when the matter is next before the court.
11 In the meantime, the plaintiff has the benefit of an order for the enforcement of the part of the Settlement Terms that benefit him and has used that order to support the issue of the Second Warrant. The second defendant does not, but it is clear from his material and his submissions before me that this is what he is seeking. The second defendant is unrepresented, and therefore some flexibility is called for in relation to his compliance with the formal requirements for commencing an application. I therefore propose to treat his application as in substance an application to enforce the plaintiff’s obligation under the Settlement Terms to transfer the Golden Beach property to the second defendant.
12 Having said that, there is insufficient evidence before me today both about service on the plaintiff and about the current status of the Golden Beach property to make any final orders. In particular, I do not have among the material any evidence of who are presently the registered proprietors of the Golden Beach property and what (if any) security interests might be claimed in the property. Further, it would not be appropriate to make any orders requiring plaintiff to effect the transfer, while a substantial sum remains owing to him.
13 To facilitate the implementation of all outstanding steps under the Settlement Terms, two things need to happen. First, the second defendant must arrange the payment to the plaintiff of a sum of money representing the balance of the $125,000 plus costs and interest. As at 28 August 2019, the plaintiff (by the Second Warrant) says the amount owing was $52,494.37. Second, the plaintiff must execute a transfer in favour of the second defendant of the plaintiff’s interest in the Golden Beach property.
14 Given the level of distrust between the second defendant and plaintiff, it seems unlikely that this can happen by the co-operation of the parties. One option may be for the second defendant to pay into court the sum claimed by the plaintiff, whereupon the court could order the execution of the transfer by the plaintiff or, failing that, making an order that the transfer be signed by the Registrar.
15 But before orders along those lines can be made, the second defendant wishes to argue that he should not be obliged to pay the interest claimed by the plaintiff, or at least that he should not be obliged to pay interest since the making of the 21 December Orders at the rate set by the Penalty Interest Rates Act 1983 (Vic). It seems to me that the minimum sum that the second defendant must pay is the balance of the sum payable under the Settlement Terms ($40,000), plus the cost and interest provided for in the 21 December Orders (being a total of $44,756.55).
16 However, it may be open to him to argue that, given the failure of the plaintiff to fulfil his side of the bargain under the Settlement Terms by transferring his interest in the Golden Beach property, it would be unfair to impose a penal rate of interest on the unpaid balance of the $125,000 for the period after the 21 December Orders. Instead, he could argue that he should pay no interest or only interest at the commercial rates prevailing during the relevant period. I say nothing about the merits of any such argument.
17 The second defendant has also raised whether it may be possible to have a Judicial Resolution Conference to try to resolve these outstanding matters without further orders.
18 These are all matters that need to be explored in the interests of all parties, and it is difficult to determine what path to take without some engagement from the plaintiff. To ascertain whether this can occur, I am satisfied that it is appropriate to put a hold on any further enforcement action by either party at least until the matter is back before the court. This includes any further enforcement of the Second Warrant.
19 For completeness, I should make clear that I formally refuse the second defendant’s application to review out of time the 21 December Orders. The second defendant has not given any explanation for his failure to make application before now and the delay is inordinate. I would also observe that, even if I had been minded to allow the application out of time, it seems to me that JR Burchell’s order that the second defendant pay costs fixed in the amount of $2,736.00, is unimpeachable.
20 In all the circumstances, I will make orders foreshadowed during the hearing, as set out in the orders accompanying these reasons.
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Certificate
I certify that these 8 pages are a true copy of the ruling of His Honour Judge Woodward delivered on 29 October 2019.
Dated: 29 October 2019
Simone Karmis
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