Omer Aydin v Driye Aydin
[2019] VCC 853
•14 June 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: | 14 June 2019 | |
DATE OF RULING: | 14 June 2019 | |
CASE MAY BE CITED AS: | Omer Aydin v Driye Aydin & Anor | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 853 | |
REASONS FOR RULING
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
For the first defendant | In person | |
| For the second defendant | No appearance |
HIS HONOUR:
1 I heard this application by summons filed by the plaintiff on 22 November 2018 on 14 June 2019. The plaintiff and second defendant are brothers. They both appeared in person. I was informed by the second defendant that the first defendant (who is the elderly mother of both the plaintiff and second defendant) was too ill and distressed to be present in court. After outlining to the plaintiff and second defendant what I understood to be the substance of the plaintiff’s application and hearing from the parties (primarily the plaintiff), I indicated I would be dismissing the plaintiff’s summons. I said I would endeavour to explain to the plaintiff my reasons for doing so, but would also publish more detailed written reasons. These are those reasons.
2 This proceeding was commenced by writ and statement of claim dated 27 October 2016. The plaintiff was represented at the time by Sabelberg Morcos Lawyers. The claims in the proceeding were brief and straightforward. The plaintiff alleged that by an oral agreement made on or about 1 April 2004, he agreed to make financial contributions to home loan repayments, utility bills and house renovations in connection with a property at Broadmeadows (“Broadmeadows property”). The Broadmeadows property was owned by the first defendant and occupied by the plaintiff, the first defendant and the second defendant. The plaintiff further alleged in substance that:
· the defendants represented to him that he would be reimbursed for all amounts paid by him on his moving out of the Broadmeadows property;
· he made contributions to home loan repayments, utility bills and house renovations totalling $129,670.51;
· he moved out of the property on about 1 November 2014; and
· the defendants had failed to reimburse him for the sums claimed in accordance with the agreement.
3 Notably, the plaintiff made no claim in the proceeding that he held any interest in the Broadmeadows property by reason of his alleged contributions or otherwise.
4 The defendants filed a defence dated 16 December 2016, by which they admitted there was a verbal agreement between them and the plaintiff, but that the terms of that agreement differed from those alleged by the plaintiff. They also alleged that there was a further agreement between the parties made in or about March 2010, pursuant to which the parties re-mortgaged the Broadmeadows property to finance the purchase of a Golden Beach property in the names of both the plaintiff and the second defendant and a Glenroy property in the plaintiff’s name. The defendants admitted that the plaintiff had made payments towards home loan, utility bills and house renovations on the Broadmeadows property, but did not admit the total claimed by the plaintiff.
5 It appears that the progress of the proceeding over the ensuing months was far from smooth. However, following a Judicial Resolution Conference conducted by Judicial Registrar Tran on 22 September 2017, the parties entered into terms of settlement dated 22 September 2017 (“Settlement Terms”). The Settlement Terms note that the plaintiff was represented at the Judicial Resolution Conference by Mr G Moloney of counsel and the defendants were unrepresented. The principal operative provisions of the Settlement Terms can be summarised as follows:
· they recite that the parties had agreed to settle with a denial of liability in order to avoid the costs of further litigation;
· the plaintiff agreed to transfer registration of a motor vehicle into his own name solely;
· the defendants agreed to pay the plaintiff the sum of $125,000 by no later than 4.00pm on 23 October 2017;
· the plaintiff agreed on or before 23 October 2017 to do all things necessary to transfer ownership of the Golden Beach property into the second defendant’s name;
· the parties consented to an order striking out the proceeding with a right of reinstatement, with no order as to costs;
· various default provisions provided in effect that it if the defendants failed to pay the $125,000, the plaintiff could serve a notice of default and failure to comply with that notice of default would entitled the plaintiff to reinstate the proceeding and enter judgment for the $125,000, less payments already made;
· the plaintiff acknowledged that the first defendant would transfer all her interest in the Broadmeadows property to the second defendant;
· the parties agreed that a burial plot situated adjacent to Bayram Aydin’s plot would be reserved for the first defendant;
· in consideration of the terms and “subject to their performance” the parties agreed to release each other from all claims, including in respect of various properties including the Broadmeadows property;
· the plaintiff confirmed that he released all interests and claims in the Broadmeadows property and in the Dallas property and the defendants released all interest and claims in the Glenroy property.
6 Orders were made by Judicial Registrar Tran following the execution of the Terms of Settlement that that the proceeding be struck out with a right of reinstatement and no order as to costs.
7 It seems that the defendants failed to pay the $125,000 in accordance with the Settlement Terms. On 28 November 2017, the plaintiff (by then represented by Goldsmiths Lawyers) issued a summons seeking orders that the proceeding be reinstated and that the defendants pay the plaintiff $125,000, interest and costs on an indemnity basis. The summons was heard before Judicial Registrar Burchell on 21 December 2017. Mr Goldsmith appeared for the plaintiff and the second defendant appeared in person. Orders and judgment were made by Judicial Registrar Burchell relevantly as follows:
· The proceeding be reinstated.
· The defendants pay the plaintiff the sum of $125,000 and interest in the amount of $2,020.55.
· If the defendants pay the plaintiff’s solicitor the sum of $85,000 by bank cheque by 5.00pm 22 December 2017, then there be a stay on the judgment until 28 February 2018.
· The defendants pay the plaintiff’s costs of and incidental to the summons dated 28 November 2017 fixed in the amount of $2,736.
8 The amount of $85,000 was paid by the defendants to the plaintiff on 22 December 2017 as contemplated by the orders, but the plaintiff claims that no further payments have been made by the defendants to the plaintiff. In around March 2018, the plaintiff issued a warrant of seizure and sale for the sum of $44,756.55 plus costs and interest (“Warrant”). It is not clear what (if any) action has been taken to enforce the Warrant.
9 The plaintiff is now unrepresented. On 22 November 2018, he issued a summons to the defendants supported by an affidavit sworn on 4 December 2018 deposing that (errors in original) “the Judgment/Summons made on 21 December 2017 was breached by the Defendants” and “All my evidence was not used along with my new evidences I now have, as I would have been able to receive much more my funds that is my right/entitlement”.
10 The application first came before His Honour Judge Cosgrave in the Duty Court on 29 January 2019 when both the plaintiff and second defendant appeared in person. His Honour noted in other matters that the first defendant was unwell and not present in court. His Honour made a series of orders for the filing of further affidavit material on behalf of the plaintiff and the defendants during the period from 26 March 2019 to 11 June 2019 and adjourned the plaintiff’s summons for further hearing to today. There have since been four further affidavits filed in the proceeding summarised below.
11 First, an affidavit of the plaintiff sworn on 26 March 2019. In this affidavit, the plaintiff repeats his assertion that the “Judgment/Summons made on 21 December 2017 was breached by the Defendants”. He goes on to depose that he now has evidence that he has paid 66.99% of the total mortgage repayments on the Broadmeadows property. He asserts that in around late 2003 or 2004 the second defendant said that if he agreed to accept responsibility for paying for the mortgage of the Broadmeadows property, he would be entitled to 50% of the property.
12 However, he adds that “since the Hearing on 22 September 2017, I have discovered new evidence to show that I in fact paid for 66.99% of the mortgage, not 50% as previously represented” by the defendants. He exhibits bank statements which he asserts prove this entitlement. The plaintiff also asserts that if the defendants had not lied about giving him his share of the Broadmeadows property, he would have purchased his own home in either 2003 or 2004 and he identifies a number of household expenses which he asserts he paid for over the ensuing years.
13 Second, a document apparently signed by Ozlem Aydin in Turkey on 10 June 2019. Ms Aydin states that she is the first defendant’s daughter and the second defendant’s and plaintiff’s sister. She refers to having heard and witnessed several conversations between the parties where they committed to share living expenses and the plaintiff and the second defendant agreed to look after the first defendant: “in every aspect especially financially until her death, the Broadmeadows property to be paid off in full, then and only then the Broadmeadows property would be inherited by the Plaintiff and the Second Defendant only”.
14 Third, an affidavit sworn by the second defendant on 10 June 2019 which essentially deposes only to the very late service by the plaintiff on the second defendant of the plaintiff’s 26 March affidavit.
15 Finally, an affidavit sworn by the first defendant on 10 June 2019 which refers to her health and financial difficulties, the background to her purchase of the Broadmeadows property, the commitment of the plaintiff and second defendant to look after her until her death, with the Broadmeadows property to be paid off in full and “then and only then the Broadmeadows property would be inherited by the plaintiff and the second defendant only”. The first defendant also deposes that the second defendant concentrated on paying for her living expenses and helping her to manage her household finances. She deposes that the second defendant performed a lot of the repairs and maintenance on the houses and vehicles and that he “contributed the most towards the Broadmeadows mortgage”.
16 In the course of the hearing of the matter, I sought to ascertain from the plaintiff how the claim he now seeks to pursue is different from that pursued in the original proceeding. As I understood it, the plaintiff is asserting that he can prove he made a very significant contribution to the Broadmeadows property and the living expenses. He said that his bank statements show that he paid $101,300 in contributions to the mortgage alone. He explained that he has most of the bank statements concerned, but some of them were wrongly retained by one of his former lawyers. However, he said he can remember the total figures they showed.
17 The plaintiff also asserted that he earned over $500,000 dollars from his employment with Toyota during his time living at the Broadmeadows property with the defendants, and he had group certificates to prove this. He added that this included over two years when the second defendant did not have a well-paid job and so was not contributing as much. He said this was evidence that proved that the proportion of his contribution was far greater than he thought at the time of the original proceeding and the settlement. Finally, he alleged that his original lawyers had not advised him properly about the original proceeding and that they should have used this evidence to pursue a different or larger claim. He said his two subsequent lawyers gave him advice to this effect.
18 I hasten to say that in hearing the plaintiff make these and other assertions without demur, I was not accepting them as being factually accurate. They may or may not be. My concern was only to try to tease out any matter that may be relevant to the determination of the plaintiff’s summons and to get a sense of whether the matters he raised might form the basis of a sustainable claim in this or in any new proceeding. Nothing of this kind emerged from our exchanges. Notably, the plaintiff did not appear to be asserting that he now had evidence that his total contributions materially exceeded the amount of $129,670.51 claimed in the proceeding.
19 I should also acknowledge that it was clear that the second defendant disputed most if not all of what the plaintiff was saying and asserted that he had many documents that he could produce to show that the plaintiff’s claims were wrong. He was frustrated that I did not hear at greater length his answers to all the plaintiff’s assertions and examine his documents. However, as I endeavoured to explain to the second defendant, it was unnecessary for me to do so. I was satisfied that, putting his arguments at their highest, the plaintiff could not succeed on his summons. I was also satisfied that the plaintiff would have considerable (and possibly insurmountable) difficulties in pursuing additional or new claims against the defendants based on the factual matters he was relying on and in the face of the settlement terms.
20 The plaintiff’s summons dated 22 November 2018 is plainly misconceived. On the material before me, the plaintiff undoubtedly has rights to pursue recovery for the amount claimed in the Warrant (plus further interest and costs incurred since the Warrant was issued), whether by enforcing the Warrant or otherwise. But there is no conceivable basis upon which the plaintiff could seek to agitate in this proceeding as currently framed, a claim to the effect that he has a 66.99% interest in the Broadmeadows property. The original claim in the proceeding was a simple money claim and it does not appear to be suggested that the amount claimed (as distinct from the proportion it bears to what was paid by the second defendant) is incorrect.
21 Thus, even if the plaintiff was entitled to pursue his original claims in the proceeding notwithstanding the Settlement Terms, those claims would require wholesale amendment before the plaintiff could advance any argument that he was entitled to an interest in the Broadmeadows property. Further, based on the pleadings and affidavit material filed to date in the proceeding, the prospects of the plaintiff formulating a proper basis for such a claim seems to me to be remote.
22 Moreover, it is far from clear that the plaintiff can now pursue his original claim in the proceeding, or any claim that was released by him by reason of the Settlement Terms. Notably, this includes any claim to any interest in the Broadmeadows property. Whether he can will ultimately depend on whether, as a matter of construction, the Settlement Terms give rise to an “accord and satisfaction” settlement or an “accord and condition satisfaction” settlement (see, for example, Scaffidi v Perpetual Trustees Victoria Ltd [2011] WASCA 159).
23 My preliminary view, based only on a reading of the Settlement Terms and without the benefit of any argument on the question, is that the Settlement Terms fall into the former category of settlement. If that view is correct, then the defendants would have a complete defence to any claim by the plaintiff (whether in this proceeding or in a fresh proceeding) in respect of the matters covered by the Settlement Terms, including the claims that the plaintiff apparently now seeks to raise by the summons before me.
24 Beyond the plaintiff’s bald assertion of being lied to, there is also nothing in the material presently before me that would provide a sustainable basis for a claim that the Settlement Terms should be set aside as void or voidable. I note in this regard that those Terms were agreed following an Judicial Resolution Conference before a Judicial Registrar where the plaintiff was represented by experienced counsel and the second defendant was unrepresented.
25 On my assessment of the documents referred to above, the plaintiff’s only apparently sustainable claim against the defendants is for the recovery of the $44,756.55 claimed in the Warrant plus ongoing interest and costs. That said, it was not clear whether or not the defendants might claim that all or part of this was paid or that they had other grounds for resisting the enforcement of the Warrant. The plaintiff may also have claims against one or more of his former lawyers, but this too seems unlikely. On the face of it, there are no obvious deficiencies in the original claim and the terms of settlement appear very favourable to the plaintiff, given the apparent substantial factual dispute over his original claims. The second defendant asserted that he signed the terms only because his mother insisted.
26 In the circumstances, I will order that the plaintiff’s summons be dismissed. There is no occasion to order costs because none of the parties is represented. I should also observe that, because of the issue of the construction of the Settlement Terms, any claim that the plaintiff may in the future seek to make against the defendants either in this proceeding or any other proceeding will involve considerable legal complexity. It is very difficult to see how such a claim could be formulated and pursued without the benefit of competent and considered legal advice. And, as I have already observed, such a claim is likely to face considerable obstacles to its success. Indeed, those obstacles may be such that, properly advised, the plaintiff and any legal representative will be unable to certify that the claim has a proper basis.
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Certificate
I certify that these 10 pages are a true copy of the ruling of His Honour Judge Woodward delivered on 14 June 2019.
Dated: 14 June 2019
Simone Karmis
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