Permanent Custodians v Petrovska - [2015] VSC 42

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

S CI 2013 00081

PERMANENT CUSTODIANS LIMITED	Plaintiff
v
MILEVA PETROVSKA	Defendant

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JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 FEBRUARY 2015
DATE OF JUDGMENT:	20 FEBRUARY 2015
CASE MAY BE CITED AS:	PERMANENT CUSTODIANS v PETROVSKA
MEDIUM NEUTRAL CITATION:	[2015] VSC 42

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PRACTICE AND PROCEDURE – third party procedure – default by third party – application by defendant to enter judgment against third party following settlement of principal proceeding with plaintiff – plaintiff’s judgment not satisfied – leave required – factors influencing discretion considered – ss 7,9 Civil Procedure Act 2010, r 11.11(1) Supreme Court (Civil Procedure Rules) 2005.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Hay	Gadens
For the Defendant	Mr MR Pearce SC with Ms SC Bailey	LN Christie & Co

HIS HONOUR:

The defendant is the sole proprietor of land at 83 Roseleigh Boulevard, Sydenham. The land was mortgaged to the plaintiff as security for a loan of $262,500 advanced under a written loan agreement dated 14 March 2008. The loan fell into arrears. The plaintiff gave notice to the defendant under s 76 of the Transfer of Land Act 1958 and the mortgage, requiring the default to be remedied, which was not complied with. The plaintiff now seeks possession of the land.

The defendant refused to surrender possession of the land on the ground that the mortgage was granted to the plaintiff by reason of the plaintiff’s unconscionable conduct in that the transaction was improvident for the defendant and funds advanced under the loan agreement went to third parties. The third parties were the defendant’s son, Tony Petrovska, daughter in law, Melissa Tzountzourkas, and her father, Trajan Tzountzourkas. The plaintiff’s loan advance was used to refinance earlier loans also allegedly made for the benefit of the third parties. The defendant alleged that Mr Tzountzourkas received 79 percent of the funds advanced and the remaining 21 percent of the advance benefitted the defendant’s son and daughter in law.

By a third party proceeding, the defendant sought orders that Mr Tzountzourkas indemnify her in respect of 79 percent of her liability to the plaintiff, and that Mr Petrovska and Ms Tzountzourkas indemnify her in respect of 21 percent of her liability to the plaintiff and such further or other relief as the court may consider appropriate. The third parties did not appear to the third party notice to contest the defendant’s allegations and the third party proceedings have remained in abeyance.

When the principal proceedings came on for trial, the plaintiff informed the court that the parties had agreed a compromise. That compromise was documented in a confidential deed of settlement which, by agreement of the parties, was tendered by the defendant as a confidential exhibit. Consequent on the deed of settlement, the plaintiff sought the following orders, which were made by consent:

(a)The plaintiff recover from the defendant possession of all that piece of land contained in…

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 Permanent Custodians v Petrovska

Details

AGLC: Permanent Custodians v Petrovska [2015] VSC 42
Case: [2015] VSC 42
Decision Date: 20 FEBRUARY 2015

CaseChat Overview and Summary

In the case of Permanent Custodians v Petrovska, the dispute arose following the settlement of the principal proceeding between the plaintiff and the defendant. The defendant subsequently applied to enter judgment against a third party, pursuant to section 7 of the Civil Procedure Act 2010, after the third party defaulted in their appearance. The plaintiff, however, did not receive full satisfaction of their judgment. The matter was brought before the court to determine whether the defendant should be granted leave to enter judgment against the third party. The court was required to consider the relevant statutory provisions and case law to exercise its discretion in this matter.

The central legal issue before the court was whether the defendant should be granted leave to enter judgment against the third party, despite the plaintiff's judgment not being fully satisfied. The court needed to consider the factors relevant to the exercise of its discretion under section 9 of the Civil Procedure Act 2010, as well as the relevant provisions of rule 11.11(1) of the Supreme Court (Civil Procedure Rules) 2005. The court also had to determine whether the third party's default warranted the entry of judgment against them.

The court found that it had the discretion to grant leave to enter judgment against the third party, despite the plaintiff's judgment not being fully satisfied. The court considered the factors relevant to the exercise of this discretion, including the delay in bringing the application, the degree of fault by the third party, and the extent to which the plaintiff's position had been prejudiced. The court also noted that the third party had defaulted in their appearance, which was a significant factor in favour of granting the application. After weighing these factors, the court determined that it was appropriate to grant the defendant's application for leave to enter judgment against the third party. This decision balanced the interests of all parties involved and provided a fair outcome in the circumstances.

The final orders of the court were that the defendant was granted leave to enter judgment against the third party, despite the plaintiff's judgment not being fully satisfied. This decision allowed the defendant to pursue their claim against the third party and provided a resolution to the dispute. The court's decision also clarified the factors that should be considered when exercising the discretion to grant leave to enter judgment against a third party in similar cases.

Orders