Reed v Courtney - [2022] VSC 815

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S ECI 2020 04159

BETWEEN:

GLEN ANDREW REED (AS EXECUTOR OF ESTATE OF DAVID GRAEME COURTNEY)	Plaintiff
v
KATHLEEN MARY COURTNEY & ANOR (according to the attached Schedule)	Defendants

---

JUDGE:	Irving AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	17 and 18 August 2022
DATE OF JUDGMENT:	22 December 2022
CASE MAY BE CITED AS:	Reed v Courtney & Anor
MEDIUM NEUTRAL CITATION:	[2022] VSC 815

---

PRACTICE AND PROCEDURE – Defendant’s application for reinstatement of proceedings – Defendant claims that she did not consent to consent orders settling the proceeding – Application refused.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms A Carruthers	Forty Four Degrees – Lawyers and Consultants
For the First Defendant	Mr B Zhou (solicitor)	Madgwicks
No appearance for the Second Defendant

HIS HONOUR:

This is an application by the first defendant (Ms Courtney) to reinstate this proceeding on the basis that she never provided instructions to her solicitor, Mr Efron, to consent to settle it (the reinstatement application).

The proceeding was an application by the plaintiff to remove three caveats lodged by Ms Courtney. Ms Courtney had lodged one caveat over a property in South Yarra and two caveats over another property in Lorne. The second defendant, the Registrar or Titles, indicated in correspondence to the Court that she did not intend to appear in the proceeding. The proceeding had been set down for hearing on 1 February 2021 before Daly AsJ. On 29 January 2021, Daly AsJ made orders by consent that the Registrar of Titles remove the caveats, that Ms Courtney be restrained from lodging any caveats over the South Yarra property and the Lorne property and that Ms Courtney pay the plaintiff’s costs. On 15 February 2021, Daly AsJ issued a further order under the slip rule correcting a clerical error in the order of 29 January 2021.

The reinstatement application was filed on 10 February 2022. It was common ground that by that time the caveats had been removed, one of the properties had been sold and the plaintiff had applied for his costs to be taxed by the Costs Court. The Costs Court proceeding is on hold awaiting the outcome of Ms Courtney’s reinstatement application.

The plaintiff opposed Ms Courtney’s reinstatement application. The second defendant did not participate in the hearing of Ms Courtney’s application.

For the reasons that follow, I have refused Ms Courtney’s reinstatement application.

Material and evidence relied upon by the parties

Ms Courtney, in addition to her oral evidence, relied upon her affidavits sworn 23 January 2022, 10 February 2022, 16 March 2022 and 19 April 2022.

The plaintiff, in addition to the oral evidence of Ms Grech and Mr Efron relied on three affidavits affirmed by Srishti Mahant, the plaintiff’s solicitor, affirmed 24 March 2022, 22 April 2022 and 15 July 2022 respectively.

The evidence

Ms Courtney’s evidence was that she was aware that the proceeding involved…

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 [2022] VSC 815
Case: [2022] VSC 815
Decision Date: 22 December 2022

CaseChat Overview and Summary

The case of Reed v Courtney involved a defendant who sought to have proceedings reinstated after consent orders had been entered to settle the matter. The defendant argued that she did not consent to the terms of the orders, and thus sought to have the proceedings reopened. The matter was heard in the Magistrates Court of Victoria.

The legal issues before the court were whether the defendant's application for reinstatement of proceedings should be granted, and whether the defendant had demonstrated that she did not consent to the terms of the consent orders. The court had to determine whether there were grounds to set aside the consent orders and whether the defendant's application should be refused.

The court found that the defendant had failed to demonstrate that she did not consent to the terms of the consent orders. The court noted that the defendant had been represented by legal counsel at the time the consent orders were entered, and that the consent orders were signed by the defendant's solicitor. The court held that the defendant had not provided sufficient evidence to rebut the presumption that the consent orders reflected the agreement of the parties. The court refused the defendant's application for reinstatement of proceedings.

No further orders were made by the court.

Orders