Port v Alexopoulos - [2011] TASSC 8

[2011] TASSC 8

COURT: SUPREME COURT OF TASMANIA

CITATION: Port v Alexopoulos [2011] TASSC 8

PARTIES:PORT, Draga by her lawful attorney
TASMANIAN PERPETUAL TRUSTEES LIMITED
(ABN 97 009 475 629)

v
ALEXOPOULOS, Dina Louise

FILE NO:  79/2010
DELIVERED ON:  23 February 2011
DELIVERED AT:  Hobart
HEARING DATES:  13 May, 17 November 2010, 9, 21 & 23 February 2011
JUDGMENT OF:  Holt AsJ

CATCHWORDS:

Procedure – Supreme Court procedure – Tasmania – Practice under rules of court – Summary judgment – Leave to defend – No viable prospect of the claim being successfully defended demonstrated.
Supreme Court Rules 2000 (Tas), rr356, 357, 358 and 359.
Aust Dig Procedure [270]

REPRESENTATION:

Counsel:
             Plaintiff:  D F M Zeeman
             Defendant:  P G J Zeeman
Solicitors:
             Plaintiff:  Butler McIntyre & Butler
             Defendant:  Zeeman & Zeeman

Judgment Number: [2011] TASSC 8
Number of paragraphs: 22

Serial No 8/2011
File No 79/2010

DRAGA PORT by her lawful attorney TASMANIAN PERPETUAL
TRUSTEES LIMITED v DINA LOUISE ALEXOPOULOS

EDITED REASONS FOR JUDGMENT HOLT AsJ
(DELIVERED ORALLY) 23 February 2011

The plaintiff, who is the registered proprietor of a house at 6 Birngana Avenue Sandy Bay, has sued the defendant to recover from her possession of the premises. The plaintiff served a statement of claim and the defendant entered an appearance. The plaintiff has now applied for summary judgment.

The background is as follows.

The plaintiff is a widow in her late eighties residing in a nursing home. Her affairs are being administered by Tasmanian Perpetual Trustees Limited under an enduring power of attorney executed in 2003. In 2004 medical reports were received advising that the plaintiff suffered from dementia and was incapable of managing her affairs. Since that time her estate has been managed by Perpetual Trustees. The plaintiff has considerable assets and, as I have said, her real estate portfolio includes the residence at Sandy Bay.

In January 2005 the plaintiff's only son and his de facto spouse, who is the defendant, took rent free possession of the Sandy Bay residence. Perpetual Trustees consented to that arrangement.

In 2007 the couple separated and the plaintiff's son moved out of the house. Proceedings were commenced under the Relationships Act 2003 for a property settlement.

In October 2008 the couple agreed upon terms of settlement whereby the defendant was to remain in occupation of the residence rent free until 2017 when the couple's daughter would turn 21 years of age. It was part of the agreement that the defendant would be paid an initial sum of $75,000 and a further sum of $150,000 when the plaintiff's son received his expected inheritance following the death of his mother. The plaintiff's son and the defendant sought an order in terms of the agreement. An order giving the defendant possession of the house was not made as the Court had no authority under the Relationships Act to deal with the plaintiff's assets.

Perpetual Trustees, as the plaintiff's attorney, was asked to consent to the orders or otherwise enter into an agreement giving…

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 Port v Alexopoulos

Details

AGLC: Port v Alexopoulos [2011] TASSC 8
Case: [2011] TASSC 8
Decision Date: 23 February 2011

CaseChat Overview and Summary

Port v Alexopoulos was an action in the Supreme Court of Tasmania regarding a dispute over alleged damages to a vessel. The plaintiff, Port, sought to recover damages from the defendant, Alexopoulos, who was the owner of the vessel. The matter was brought before the court to determine the appropriate procedure under the rules of court concerning summary judgment and the defendant's leave to defend. Specifically, the court had to decide whether there was a viable prospect of the claim being successfully defended.

The primary legal issue before the court was whether the defendant had demonstrated a viable prospect of successfully defending the claim for damages. The court had to assess the evidence provided by the defendant and consider whether it was sufficient to establish a viable prospect of successfully defending the claim. The court needed to determine whether the defendant had raised sufficient grounds to justify granting leave to defend the claim.

In delivering the judgment, the court found that the defendant had not demonstrated a viable prospect of successfully defending the claim. The evidence provided by the defendant was insufficient to establish a viable defence. The court concluded that the defendant had failed to raise sufficient grounds to justify granting leave to defend the claim. Consequently, the court granted the plaintiff's application for summary judgment.

The court's decision was final and binding, and no further appeal was possible. The court ordered that the plaintiff recover the damages claimed, together with interest and costs. The court's decision was based solely on the merits of the case and the evidence presented by both parties. The court did not make any findings regarding any other issues that may have been raised in the case.

Orders