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Rozenblit v Vainer

Rozenblit v Vainer

Case [2019] VSCA 164 31 July 2019

Admissibility of Evidence

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2019 0067

BORIS ROZENBLIT	Applicant
v
MICHAEL VAINER	First Respondent
and
ALEXANDER VAINER	Second Respondent

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JUDGES:	McLEISH and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 July 2019
DATE OF JUDGMENT:	31 July 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 164
JUDGMENT APPEALED FROM:	[2019] VSC 316 (Sifris J)

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PRACTICE AND PROCEDURE – Freezing order pending appeal – Whether good arguable case – Whether real prospect of success – Whether reasonable possibility, not necessarily more than 50 per cent chance, that assets may be disposed of, dealt with, or diminished in value – Whether balance of convenience test applicable to freezing orders – Findings by primary judge that first respondent unreliable witness who disregarded discovery obligations and frustrated Court’s processes and proper administration of justice – Previous disposal of assets by respondents – No serious hardship to respondents if order made – Supreme Court (General Civil Procedure) Rules 2015 O 37A – Cardile v LED Builders Pty Ltd (1999) 198 CLR 380, applied.

PRACTICE AND PROCEDURE – Security for costs – Impecunious applicant – Security for costs would result in discontinuance – Findings by primary judge of significant misconduct by respondents but nominal damages – Whether unjust to deprive applicant of ability to vindicate rights arising from misconduct – Respondents have substantial costs liability to applicant from earlier proceedings against which costs of application for leave to appeal may be offset – Supreme Court (General Civil Procedure) Rules 2015 rr 64.38(2)(a), 64.38(4) – Australian Dream Homes Pty Ltd v Stojanovski [2016] VSCA 38, Botsman v Bolitho [2018] VSCA 111, Bodycorp Repairers Pty Ltd v Australian Associated Motor Insurers Ltd [2017] VSCA 213, Timbercorp Finance Pty Ltd (in liq) v Tomes [2015] VSCA 322, Jafari v 23 Developments Pty Ltd [2019] VSCA 16, referred to.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Korman	P G Henenberg
For the Respondents and Ms Sofya Vainer	Mr N Evans, Solicitor	Aptum Legal

McLEISH JA

NIALL JA:

There are two applications before the Court pending the hearing of the application for leave to appeal and any appeal in this proceeding: the applicant seeks a freezing order, and the respondents seek security for their costs of the application and any appeal.

Freezing order

First, the applicant (Mr Rozenblit) seeks orders against the respondents, Mr Michael Vainer and his father, Dr Alexander Vainer, and against Dr Vainer’s wife, Sofya Vainer, continuing freezing orders made by Sifris J on 17 September 2018 and varied on 7 June 2019. By those orders, the three respondents to the present application were restrained from disposing of, dealing with or diminishing the value of four parcels of land or shares in four companies.

The orders of Sifris J were to expire on 24 June 2019. By orders made on 20 June 2019, this Court continued the orders until the hearing and determination of the present application. In effect then, the present application is…

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 Rozenblit v Vainer

Details

AGLC: Rozenblit v Vainer [2019] VSCA 164
Case: [2019] VSCA 164
Decision Date: 31 July 2019

CaseChat Overview and Summary

Rozenblit sought leave to appeal against a decision to dismiss their claim for damages against Vainer and others. The primary judge had found that Vainer and others had committed serious misconduct and ordered them to pay nominal damages, but the primary judge had dismissed the claim for damages on the basis that the plaintiff had failed to prove their case. Vainer and others opposed the application for leave to appeal, arguing that there was no good arguable case and that the balance of convenience did not favour the making of a freezing order. The primary judge had made a freezing order pending the outcome of the appeal, freezing the assets of Vainer and others.

The court had to consider whether there was a good arguable case for appeal and whether the balance of convenience favoured the making of a freezing order. The court found that there was a good arguable case for appeal because there were arguable errors in the primary judge's reasoning that had the potential to affect the outcome of the appeal. The court also found that the balance of convenience favoured the making of a freezing order because there was a real prospect of success on appeal and a reasonable possibility that the assets may be disposed of, dealt with, or diminished in value if the order was not made. The court noted that the primary judge had found Vainer to be an unreliable witness who had disregarded discovery obligations and frustrated the Court's processes and proper administration of justice. The court also found that there was no serious hardship to Vainer and others if the freezing order was made.

The court allowed the appeal and made a freezing order pending the outcome of the appeal. The court found that the primary judge had erred in dismissing the claim for damages and that there was a good arguable case for appeal. The court also found that the balance of convenience favoured the making of a freezing order because there was a real prospect of success on appeal and a reasonable possibility that the assets may be disposed of, dealt with, or diminished in value if the order was not made.

The court also considered the application for security for costs and found that it would be unjust to deprive Rozenblit of the ability to vindicate their rights arising from the misconduct of Vainer and others. The court noted that Vainer and others had substantial costs liability to Rozenblit from earlier proceedings against which the costs of the application for leave to appeal could be offset. The court ordered that no security for costs be paid by Rozenblit.

Orders