Phillips v Southage Pty Ltd

Case [2014] VSCA 17


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2014 0001
S APCI 2014 0004
S APCI 2013 0152
 S APCI 2013 0160

STEVE PHILLIPS

Applicant

v

SOUTHAGE PTY LTD (ACN 050 240 965)

Respondent

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JUDGES:

WHELAN and SANTAMARIA JJA

WHERE HELD:

MELBOURNE

DATE OF HEARING:

7 February 2014

DATE OF JUDGMENT:

20 February 2014

MEDIUM NEUTRAL CITATION:

JUDGMENT APPEALED FROM:

[2014] VSCA 17

Orders made 17 September 2013 (Vickery J), 10 October 2013 (Judd J) and 29 November, 3 December, 13 December and 18 December 2013 (Ginnane J)

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PRACTICE AND PROCEDURE – Application for a stay pending application for special leave – Principles applicable – Application refused.

APPLICATION FOR LEAVE TO APPEAL – Application for extension of time – Interlocutory orders – Relevant issues previously determined – Application dismissed.

APPEALS – Refusal and granting of injunctions - Decisions of trial judges clearly correct – Appeals dismissed.

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APPEARANCES: Counsel Solicitors
The Applicant appeared in person
For the Respondent Mr B Velos (solicitor) Velos Lawyers

WHELAN JA:

Overview

  1. Mr Steve Phillips and his brother, Mr Phillip Phillipou, were the joint executors of the estate of their mother, Angeliki Phillipou.  Amongst the assets of her estate when she died in 1994 were adjoining terrace houses at 27 and 29 Brunswick Street, Fitzroy.  Provision was made in her will leaving 27 Brunswick Street to Mr Phillipou for his life or until his son turned 25, and then to his son;  and leaving 29 Brunswick Street to Mr Phillips for his life or until his son turned 25, and then to his son.

  1. Notwithstanding the provisions of the will, on 16 December 1996 Mr Phillips and Mr Phillipou as executors signed a transfer transferring 29 Brunswick Street, Fitzroy (‘the property’) to a company named Beijing Garden Resort Pty Ltd (‘Beijing Garden’).  Mr Phillips also signed the transfer on behalf of Beijing Garden as its sole director.  The transfer expressed the consideration for the transfer to be $250,000.

  1. Beijing Garden is the trustee of a discretionary trust established by Mr Phillips in 1996, named the Stavrous Phillipou Family Trust (‘the family trust’).  Mr Phillips and his children are beneficiaries.  The deed names Mr Phillips as ‘Guardian’ and ‘Appointor’.

  1. In 2006 Beijing Garden mortgaged the property in favour of Permanent Trustee Co Ltd, and in 2010 it granted a second mortgage in favour of the respondent, Southage Pty Ltd (‘Southage’).  After default, Southage took proceedings in 2011 to obtain possession of the property.

  1. Mr Phillips then embarked upon, what may fairly be described as, a campaign to prevent the mortgagee from taking possession of, and selling, the property.  He has brought proceedings in the trial division of this Court and in the Victorian Civil and Administrative Tribunal, he has lodged caveats and other dealings with the Registrar of Titles, and he has defended proceedings concerning the removal of caveats, and proceedings seeking to enjoin him from activity outside the courts.

  1. Southage obtained judgment for possession, and then obtained a warrant of possession, in…

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Phillips v Southage Pty Ltd [2014] VSCA 17
Case
[2014] VSCA 17
Decision Date

CaseChat Overview and Summary

The parties involved in this case were Phillips and Southage Pty Ltd, with the dispute concerning an application for a stay pending an application for special leave to appeal, as well as an application for leave to appeal and an application for extension of time. The case was heard in the court of appeal. The central legal issues that the court had to decide upon involved the principles applicable to an application for a stay pending an application for special leave, the dismissal of an application for leave to appeal, and the dismissal of an application for extension of time.

The court began by considering the principles applicable to an application for a stay pending an application for special leave. It was established that the applicant must demonstrate that they have a serious question to be tried, and that the case falls within the class of cases that ought to be heard by the High Court. The court found that Phillips had not satisfied these criteria, and therefore dismissed the application for a stay. The court also dismissed the application for leave to appeal, as the relevant issues had already been determined by the trial judge. Additionally, the application for extension of time was dismissed, as the applicant had not provided sufficient grounds to warrant an extension.

The court's reasoning and outcome were clear and concise, dismissing the applications made by Phillips. The court held that the principles applicable to an application for a stay pending an application for special leave were not met, and that the relevant issues had already been determined by the trial judge in the previous applications. The refusal and granting of injunctions were found to be clearly correct decisions, leading to the dismissal of the appeals.

The final orders of the court were that the application for a stay pending an application for special leave, the application for leave to appeal, and the application for extension of time were all dismissed. This decision highlights the importance of meeting the criteria for each application and the need for thorough consideration of the relevant issues before proceeding with an appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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