Prior v Lakic (No 2) - [2017] VSC 659

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

PROPERTY LIST

S CI 2017 1163

STEPHEN PRIOR	Plaintiff
v
BOGDANKA LAKIC, ZDRAVKO LAKIC, BORIS LAKIC and NJEGOS LAKIC	First to Fourth Defendants
and
THE REGISTRAR OF TITLES	Fifth Defendant

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JUDGE:	Digby J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 September 2017
DATE OF JUDGMENT:	27 October 2017
CASE MAY BE CITED AS:	Prior v Lakic (No 2)
MEDIUM NEUTRAL CITATION:	[2017] VSC 659 First Revision: 9 November 2017

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PRACTICE AND PROCEDURE – Application for an adjournment of the Defendants’ Application to set aside judgment obtained in absence of the first to fourth defendants – Application for adjournment refused – Application to set aside judgment obtained in absence of the first to fourth defendants – Application to extend time within which to apply to set aside judgment – Relevant principles – Rules 3.02 and 49.02 of the Supreme Court (General Civil Procedure) Rules 2015

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APPEARANCES:	Solicitors
For the Plaintiff	Mr C Juebner of Counsel	Obst Legal
For the First, Second and Third Defendants	First, Second and Third Defendants appeared in person.
For the Fourth Defendant	No appearance.
For the Fifth Defendant	Letter from the fifth defendant to the plaintiff dated 6 April 2017 advised he did not intend to appear and that he had been joined for jurisdictional reasons only.

HIS HONOUR:

Defendants’ Application to set aside judgment entered for the plaintiff on 28 April 2017

The first to fourth defendants, by Summons filed 18 May 2017 (dated 12 May 2017), seek to set aside Orders made in favour of the plaintiff on 28 April 2017 (the April 2017 Judgment) in this proceeding (the Defendants’ Application).

The Defendants’ Application is supported by the affidavits of Bogdanka Lakic (the first defendant):

(a) 12 May 2017 (First Bogdanka Affidavit);

(b) 2 June 2017, comprising 45 paragraphs (Second Bogdanka Affidavit);

(c) 2 June 2017, comprising 29 paragraphs (Third Bogdanka Affidavit); and

(d) 9 June 2017, titled ‘Affidavit of Documents’ (Fourth Bogdanka Affidavit).

Summary of the plaintiff’s proceeding in which the 28 April 2017 judgment was entered

The plaintiff commenced this proceeding by Originating Motion and Summons filed 31 March 2017 (the plaintiff’s proceeding) for orders, inter alia, that a transfer of land in respect of a property at 22 Lucerne Road, Ferntree Gully in the State of Victoria (the Ferntree Gully Property) from the first defendant to the second defendant be declared void and that the fifth defendant reject a transfer of land between the first defendant and the second defendant in respect of a property at 27 Maplewood Court, Cranbourne North in the State of Victoria (the Cranbourne Property).

The transfers referred to in the last preceding paragraph were sought to be impugned by the plaintiff because he alleged, and on 28 April 2017 in the plaintiff’s proceeding established, that those transfers were undertaken by the first and second defendants, and colluded in and facilitated by the third defendant and the fourth defendant, in a deliberate…

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 Prior v Lakic (No 2)

Details

AGLC: Prior v Lakic (No 2) [2017] VSC 659
Case: [2017] VSC 659
Decision Date: 27 October 2017

CaseChat Overview and Summary

The case of Prior v Lakic (No 2) involved an application for an adjournment of a defendants' application to set aside a judgment obtained in their absence. The application was before the Supreme Court. The first to fourth defendants sought an adjournment of their application to set aside a judgment obtained in their absence, and an extension of time to apply to set aside the judgment. They also sought an adjournment of the hearing of the application to set aside the judgment.

The legal issues before the court included the principles relevant to an application for an adjournment under Rule 3.02 of the Supreme Court (General Civil Procedure) Rules 2015, and the application to extend time under Rule 49.02. The court was required to determine whether the defendants had shown sufficient grounds for an adjournment and an extension of time. The court was also required to decide whether the application to set aside the judgment should be granted.

The court held that the application for an adjournment was not well-founded. The court found that the defendants had not shown any sufficient grounds for an adjournment of the hearing of the application to set aside the judgment. The court also held that the application to extend time was not justified, as the defendants had not shown any sufficient grounds for the delay in making the application. The court further held that the application to set aside the judgment was not meritorious, as the defendants had not shown any sufficient grounds for setting aside the judgment obtained in their absence. The court dismissed the application for an adjournment, the application to extend time, and the application to set aside the judgment.

The court did not make any orders in relation to the application for an adjournment, the application to extend time, or the application to set aside the judgment. The judgment remained in force, and the defendants were not granted any relief from the judgment obtained in their absence.

Orders