Re Maryvell Investments Pty Ltd (in liq)

[2010] VSC 278

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
COMMERCIAL COURT

LIST E
No. 4484 of 2006

IN THE MATTER of MARYVELL INVESTMENTS PTY LTD (IN LIQUIDATION)
(ACN 080 327 073)

GEORGE VELISSARIS (IN HIS OWN CAPACITY AND AS THE DIRECTOR AND SHAREHOLDER OF MARYVELL INVESTMENTS PTY LTD) (IN LIQUIDATION) (ACN 080 327 073)	Plaintiff
v
LAURENCE ANDREW FITZGERALD (IN HIS CAPACITY AS LIQUIDATOR OF MARYVELL INVESTMENTS PTY LTD) (IN LIQUIDATION) (ACN 080 327 073) and B.D.O. KENDALLS (N.S.W & VIC) PTY. LTD.	Defendants

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JUDGE:	DAVIES J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 June 2010
DATE OF JUDGMENT:	11 June 2010 (delivered ex tempore, revised 21 June 2010)
CASE MAY BE CITED AS:	Re Maryvell Investments Pty Ltd (In Liquidation)
MEDIUM NEUTRAL CITATION:	[2010] VSC 278

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PRACTICE AND PROCEDURE – Application for leave to commence a proceeding – Order in place restricting right to commence a proceeding – Leave refused – Insufficient material put to the Court to make out claim

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. G Velissaris (in person)
For the Defendant	No appearance

HER HONOUR:

1. Mr Velissaris seeks leave to file an application to terminate the liquidation of Maryvell Investments Pty Ltd and for an account of the moneys from the sale of the property at 333 – 335 Sydney Road Brunswick. Leave of the Court is required by order of Robson J made on 25 February 2009 pursuant to r 27.06.1 of the Supreme Court (General Civil Procedure) Rules 2005. The order was:

2.No further proceeding or process of any kind in the trial division of the Supreme Court of Victoria, including in this proceeding concerning Maryvell Investments Pty Ltd (In liquidation), the conduct of the liquidator, the liquidator or the property at 333 Sydney Road, Brunswick be accepted for filing by the Prothonotary from George Velissaris except with the prior leave of the Court.

1. The proposed application is supported by an affidavit sworn by Mr Velissaris on 11 June 2010.  In that affidavit Mr Velissaris asserted that the liquidator had sold the property at an under value, that the liquidator had breached his duties in the sale process of the property and that there was no accounting of moneys from the proceeds of sale to Mr Velissaris or the beneficiaries of which the company was trustee.

1. This is not the first occasion in which Mr Velissaris has made those assertions.  In the judgment that Robson J delivered on 25 February 2009,[1] Robson J set out in detail the various applications made by Mr Velissaris to the Federal Court and to the Supreme Court of Victoria concerning the conduct of the liquidation and in particular the sale by the liquidator of the property at 333 – 335 Sydney Road, Brunswick.

   [1]Re Maryvell Investments Pty Ltd (In liquidation) [2009] VSC 61 (Unreported, Robson J, 25 February 2009).

1. In his detailed reasons for decision, Robson J referred to a proceeding before Gordon J in 2008 and to paragraphs from Her Honour's reasons for decision for refusing the relief that was sought.  It appears from Her Honour's reasons that there was the specific allegation that the price for which the liquidator sold the property was at an undervalue.

1. Her Honour found on the basis of the material before her that the contention of Mr Velissaris that the property was sold for less than its market value was not shown to have any reasonable prospect of success.  In particular, Her Honour noted that the procedure adopted for the sale was transparent, that the price obtained was $1.6m and that there was no suggestion that the sale was not at arm's length.

1. In his application before Robson J, Mr Velissaris in affidavit material raised similar allegations against the liquidator concerning the sale of the property in support of an application, amongst other things, to terminate the liquidation.  Robson J refused to make an order terminating the liquidation.  His Honour did so on the basis that Mr Velissaris had not put forward material before him to establish any of the claims that Mr Velissaris made against the liquidator.

1. Moreover Robson J concluded that the Federal Court had already dealt with the allegations that the liquidator had not properly sold the property and that to seek to make them again in this Court was an abuse of process.  His Honour concluded that the claim to terminate the liquidator was hopeless and bound to fail and that it should be stayed.

1. In October 2009, Mr Velissaris sought leave from the Court to commence a proceeding again in relation to the conduct of the liquidator in relation to the sale of the property at 333 – 335 Sydney Road, Brunswick.

1. The application was heard by Vickery J, and His Honour refused to give leave.  In his reasons for decision,[2] Vickery J noted that Mr Velissaris's central allegation as stated in his affidavits in support of the application, and as stated in submissions that he made to the Court, was that the liquidator had sold that property at an undervalue.

   [2]George Vellisaris and Ors v Maryvell Investments Pty Ltd (In Liquidation) & Ors [2009] VSC 448 (Unreported, Vickery J, 1 October 2009).

1. In refusing leave, His Honour stated that the proposed proceeding was not in proper form, and that it would be impossible for a defendant served with such a document to plead to it. 

1. Before me today Mr Velissaris has put a number of matters on which he relies to support his application for leave.  I accept, as Vickery J accepted, that this case is very important to him.  I also accept that Mr Velissaris believes that he has a good case against the liquidator, and that if he was provided with the opportunity to prove his case, that he would do so.  However, a person's belief that he has a case against another person is not sufficient by itself to allow that person to institute proceedings.  It is incumbent on the party instituting the proceedings to disclose a reasonable cause of action.  In the absence of being able to show that there is a proper basis for the making of the claim, the proceeding should not be allowed to continue.

1. In my view leave should not be given to Mr Velissaris to institute the interlocutory process dated 27 May 2010.  The material upon which he relies contains only assertion, and not fact or probative evidence which provide a basis for an order that the liquidation be terminated.

1. In my view, the application based on that material would be bound to fail.  I take into consideration that Mr Velissaris has made many attempts to make the same application, but despite the Court on previous occasions refusing to grant leave, or refusing to give him the relief he sought on the basis that the material on which he relied did not demonstrate that his application had any prospect of success, Mr Velissaris still has not put before the Court any evidence which enables the Court to be persuaded that there is some foundation to the assertions that he has made.

1. The application for an account of the moneys is also based on assertion, unsupported by evidence of facts or material with probative value.  That application as presented is also bound to fail. 

1. Accordingly leave is refused.