Re Velissaris - [2014] VSCA 153

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0139

IN THE MATTER of an application by GEORGE VELISSARIS

Appellant

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JUDGES:	ASHLEY and WHELAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 July 2014
DATE OF JUDGMENT:	18 July 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 153
JUDGMENT APPEALED FROM:	Re Velissaris [2012] VSC 293

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PRACTICE AND PROCEDURE – Appeal – Whether appeal should be dismissed for want of prosecution – Whether appeal deemed abandoned should be reinstated – Long delay in context of appellate proceeding – No explanation for delay – Real risk, at least, of prejudice to prospective defendants – Appeal dismissed

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Clarke	Victorian Bar Duty Barrister Scheme

ASHLEY JA:

On 4 July 2012, a judge in the Trial Division dismissed an application by George Velissaris (‘the appellant’) for the reinstatement of Maryvell Investments Pty Ltd.[1] That company had been placed into liquidation on 19 June 2006. The liquidator had presented final accounts in 2010. Those accounts showed that the company had indebtedness which it could not meet of a little more than $4 million. Following presentation of those accounts, the company had been deregistered.
[1][2012] VSC 293.

The liquidation and eventual deregistration of Maryvell has given rise to a large amount of litigation. I recently described it this way in Velissaris v Fitzgerald & Anor:[2]

15.Focusing only upon litigation instigated since Maryvell was put into liquidation, there have been no less than 22 decisions of superior courts (and in one instance of the Victorian Civil and Administrative Tribunal) relating to — (1) the affairs of Maryvell generally; (2) the asserted right of [Mr Velissaris] to continue in occupation of the Sydney Road land (‘the land’); (3) the ownership of plant and equipment (‘the plant’) in premises situate on the land; (4) the alleged misconduct of the liquidator; (5) the alleged responsibility of the purchaser of the land arising out of the purchase of the plant by another entity; (6) reinstatement of Maryvell. Certain themes have been repetitively agitated, or sought to be agitated, in this litigation, which has been conducted in the Trial Division, this Court, the Federal Court of Australia, the Full Court of the Federal Court of Australia, the High Court, and —most recently, in the present proceeding — in the County Court. [Mr Velissaris] has been the moving party or the defendant in every instance.

[2][2014] VSCA 139.

The order made on 4 July 2012 dismissing the application to reinstate Maryvell was made in one of the many claims pursued by the appellant. In the recent decision to which I have just referred, I described that proceeding this way:

64.Then [Mr Velissaris’] pursuit of the respondent and others shifted back to the Trial Division. Before Ferguson J, in Re Velissaris,[3] [Mr Velissaris] sought leave to file an application to reinstate Maryvell, which by this time had been deregistered. He sought reinstatement so as to prosecute claims which,…

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 Re Velissaris

Details

AGLC: In the Matter of an application by George Velissaris Appellant [2014] VSCA 153
Case: [2014] VSCA 153
Decision Date: 18 July 2014

CaseChat Overview and Summary

The case of Re Velissaris involved an appeal brought before the court against a decision that had not been prosecuted in a timely manner. The nature of the dispute centred on whether the appeal should be dismissed due to the significant delay in its prosecution, and if the appeal, which was deemed abandoned, should be reinstated. The matter was heard in the court of appeal.

The primary legal issues before the court were whether the lengthy delay in the prosecution of the appeal justified its dismissal, and if the appeal, which had been deemed abandoned, could be reinstated. The court was required to consider the principles of procedural fairness and the potential prejudice to prospective defendants due to the delay.

The court found that the delay was substantial and there was no satisfactory explanation for it. The court held that the delay resulted in a real risk of prejudice to prospective defendants, which was a significant factor in the decision-making process. Given these circumstances, the court determined that the appeal should be dismissed for want of prosecution. The court also noted that reinstating the appeal would not be appropriate in the given context.

The final orders of the court were that the appeal was dismissed due to the significant delay in its prosecution, and no further action would be taken to reinstate the appeal. The court emphasised the importance of timely prosecution of appeals to ensure fairness and efficiency in the legal system.

Orders