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Reed v Courtney

Reed v Courtney

Case [2023] VSC 787 22 December 2023

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S ECI 2020 04159

GLEN ANDREW REED (as executor of the estate of David Graeme Courtney)	Plaintiff
and
KATHLEEN MARY COURTNEY (also known as KATHY MARY COURTNEY)	First Defendant
and
REGISTRAR OF TITLES	Second Defendant

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JUDGE:	Harris J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 December 2023
DATE OF JUDGMENT:	22 December 2023
CASE MAY BE CITED AS:	Reed v Courtney & Anor
MEDIUM NEUTRAL CITATION:	[2023] VSC 787

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JUDICIAL REVIEW AND APPEALS – Application for leave pursuant to r 77.06 of the Supreme Court (General Civil Procedure) Rules 2015 to appeal a decision of an Associate Justice – Refusal to reinstate proceeding and set aside consent orders – Application for extension of time to bring appeal – Application for summary judgment – Application to adduce fresh evidence – No error of law identified – Proposed appeal so lacking in merit as to be futile – Application for extension of time refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms A Kinda	Forty Four Degrees Lawyers and Consultants
For the First Defendant	Self-represented
For the Second Defendant	No appearance

HER HONOUR:

Background

This is an application by Ms Kathleen Courtney for an extension of time in which to seek leave to appeal a decision of Irving AsJ, in which his Honour refused an application by Ms Courtney to reinstate the proceedings which had earlier been the subject of consent orders settling the proceeding.

On 4 November 2020, Mr Reed commenced this proceeding by originating motion seeking that caveats lodged by Ms Courtney over a property in South Yarra (the South Yarra property) and Lorne (the Lorne property) (the Properties) be removed by the second defendant, the Registrar of Titles.[1] Ms Courtney retained Mr Graeme Efron of the firm Efron & Associates as her solicitor in the proceeding.
[1] On 16 November 2020, the second defendant advised the Court by way of correspondence that she did not intend to appear in this proceeding.

On 29 January 2021, Efron & Associates signed proposed consent orders to resolve the proceeding, which were made by Daly AsJ on the same day (the Consent Orders). These included orders for the removal of caveats over the South Yarra property and the Lorne property by the second defendant, orders restraining Ms Courtney from lodging any caveats over the South Yarra property or the Lorne property, and an order that Ms Courtney pay Mr Reed’s costs in the proceeding. The orders were amended under the slip rule to correct a reference to one of the properties on 15 February 2021.

On 2 February 2022, Efron & Associates filed a Notice of Solicitor Ceasing to Act.

On 10 February 2022, Ms Courtney filed a summons seeking to reinstate the proceedings, which was opposed by Mr Reed. The basis for Ms Courtney’s application for reinstatement was that she claimed that she did not authorise Mr Efron to sign the…

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 Reed v Courtney

Details

AGLC: Reed v Courtney [2023] VSC 787
Case: [2023] VSC 787
Decision Date: 22 December 2023

CaseChat Overview and Summary

In the case of Reed v Courtney, the applicant sought leave to appeal a decision of an Associate Justice, which refused to reinstate a proceeding and set aside consent orders. The Supreme Court was tasked with deciding whether to grant leave for the appeal, as well as considering various other applications related to the proceedings. The applicant argued that there was an error of law in the Associate Justice's decision and sought an extension of time to bring the appeal, a summary judgment, and permission to adduce fresh evidence.

The court examined the legal issues surrounding the applicant's request for leave to appeal, the extension of time, the summary judgment, and the fresh evidence. The court found that no error of law was identified in the Associate Justice's decision, and the proposed appeal was lacking in merit to the extent that it was considered futile. Furthermore, the applicant failed to demonstrate sufficient grounds for an extension of time, summary judgment, or the adducing of fresh evidence.

As a result, the court refused the applicant's request for leave to appeal, the extension of time, the summary judgment, and the adducing of fresh evidence. The Associate Justice's decision was upheld, and the consent orders remained in place. The court's reasoning was based on the lack of error of law and the futility of the proposed appeal. No further orders were made beyond the refusal of the applications.

Orders