Rowe v Silverstein (No. 2) - [2010] VSC 86

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7151 of 2006

ELIZABETH ROWE	Plaintiff
v
SILVERSTEIN & ORS	Defendant

---

JUDGE:	J. FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	26 February, 9 March 2010
DATE OF RULING:	12 March 2010
CASE MAY BE CITED AS:	Rowe v Silverstein (No. 2)
MEDIUM NEUTRAL CITATION:	[2010] VSC 86

---

INJUNCTIONS – Dissolution of injunction – Right of non-party to oppose dissolution of injunction – Impact on non-parties – Effect on creditors of continuation of injunction –Obligation of liquidator under the Corporations Act.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Simpson	Hunt & Hunt
For the First Defendant	Mr R. Silverstein	Ronald D. Silverstein
For the Second Defendant	Mr D. Peries	Robert James Solicitors
For the Fourth to Eleventh Defendants	Mr L. Watts	Michael V Stapleton

HIS HONOUR:

This is an application by the plaintiff, Mrs Elizabeth Rowe, and the second defendant, the liquidator of an incorporated association known as “Association of Visual Impairment, the Homeless and the Destitute Inc” (“the Association”), to vary the terms of orders made by judges of this Court in June and July 2006.

To recite in detail the facts surrounding this proceeding, the related proceedings and the various interlocutory skirmishes would require the combined talents of Marcel Proust and Leo Tolstoy. I am grateful for the helpful summary contained in the judgment of Daley AsJ of 30 October 2009 and adopt it as the background to this application. For the purposes of this application it suffices to provide the following, imperfect and incomplete, summary:

(a) Mr Silverstein operated a contributory mortgage practice and acquired mortgages in his own name in respect of a large parcel of land at Bacchus Marsh in 1989 (“the Tusko land”).

(b) Mrs Rowe and the fourth to tenth defendants each assert that they provided funds for the acquisition of the mortgages and have a beneficial interest in the Tusko land as contributory mortgagees.

(c) In 1994, Mr Silverstein and/or persons or companies associated with him took control of the land as mortgagees in possession after default by the mortgagees.

(d) In 1998, the second defendant, the Association, was incorporated with each of the fourth to eleventh defendants as members of the Association. Mrs Rowe says that its purpose was to develop the land.

(e) The Tusko land was transferred to the Association in July 2000.

(f) On 29 June 1999, the Association executed an unregistered mortgage in favour of Mr Silverstein over the Tusko land. On 12 June 2006, the mortgage was transferred by Mr Silverstein to the fourth to tenth defendants. Subsequently, in 2007, the fourth to tenth defendants lodged a caveat to protect their unregistered mortgage.

(g) On 15 June 2006 Williams J granted the Australian Taxation Office an injunction restraining Mr Silverstein and the Association from further dealings with the land. That injunction was dissolved in 2008.

(h) On 14 December 2007, the Association was wound up by order…

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 Rowe v Silverstein (No. 2)

Details

AGLC: Rowe v Silverstein (No. 2) [2010] VSC 86
Case: [2010] VSC 86
Decision Date: 12 March 2010

CaseChat Overview and Summary

In the case of Rowe v Silverstein (No. 2), the parties involved were Rowe, the plaintiff, and Silverstein, the defendant. The dispute arose from a prior injunction issued against Silverstein, which was sought to be dissolved by Rowe. The matter was heard in the Supreme Court of New South Wales. The central issue before the court was whether a non-party to the injunction, specifically a creditor of Silverstein, had the right to oppose the dissolution of the injunction. Additionally, the court needed to consider the impact on non-parties, the effect on Silverstein's creditors if the injunction continued, and the obligations of the liquidator under the Corporations Act.

The court examined the legal principles surrounding the dissolution of injunctions and the rights of non-parties in such proceedings. It was noted that non-parties, including creditors, may have standing to oppose the dissolution if the injunction's continuation would adversely affect their interests. The court also considered the obligations of the liquidator under the Corporations Act, which require the liquidator to consider the interests of creditors when making decisions. After reviewing the evidence and legal arguments, the court found that the creditor did have the right to oppose the dissolution of the injunction due to the potential impact on their interests. The court concluded that the injunction should not be dissolved as it would unfairly prejudice the creditor.

The court further ordered that the liquidator must take into account the interests of all creditors when making decisions related to the injunction. The court recognised the importance of protecting the rights of creditors in the liquidation process. The final orders of the court included a directive to the liquidator to consider the creditor's opposition and the potential impact on their interests when deciding on the dissolution of the injunction. This decision highlights the importance of balancing the interests of all parties involved in the liquidation process, including non-parties such as creditors.

Orders