Rozenblit v Vainer and anor - [2014] VSC 510

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

S CI 2013 6645

BORIS ROZENBLIT	Plaintiff
v
MICHAEL VAINER and ALEXANDER VAINER	Defendants

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JUDGE:	LANSDOWNE AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	1 October 2014
DATE OF JUDGMENT:	10 October 2014
CASE MAY BE CITED AS:	Rozenblit v Vainer and Anor
MEDIUM NEUTRAL CITATION:	[2014] VSC 510

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PRACTICE AND PROCEDURE – Application for leave to amend the statement of claim – Proposed causes of action arising out of the liquidation of a company – Plaintiff not a member of that company at the time of the liquidation – Proposed causes of action dependent on assertion that the plaintiff held an equitable interest in shares pursuant to a constructive trust – Plaintiff failed to establish that he would have the right to prosecute a grievance about the liquidation on such a basis – Leave to amend in that and other respects refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Korman	Lloyds & Barclay Lawyers (t/a Abrahams Meese Lawyers)
For the Defendants	Mr M. McNamara	CIE Legal

HER HONOUR:

Introduction

By summons filed 29 August 2014, the plaintiff seeks leave to file and serve an amended statement of claim and an expedited trial on a date to be as soon as possible after 1 February 2015. I heard only the first of these applications on 1 October 2014. The question of expedition is a matter for the associate judge in charge of listing and it would be my intention to refer that application to her at an appropriate time.

The plaintiff’s summons was supported by an affidavit of his solicitor, Sofija Lozanova, sworn 29 August 2014, which exhibited a proposed amended statement of claim. That proposal was then overtaken by a further proposal, exhibited to a supplementary affidavit of Ms Lozanova filed and sworn 2 September 2014.

In all, five iterations of a proposed amended statement of claim were served on the defendants prior to hearing on 1 October 2014. The first two had been served on the defendants’ solicitors on 19 August and 21 August 2014 respectively. The plaintiff sought leave to file the second of these at a directions hearing held before me on 25 August 2014. That application was opposed, and I directed that application be made in the usual way on summons. The summons filed on 29 August 2014 was the product of that direction.

The iteration of the proposed amended statement of claim exhibited to the solicitor’s affidavit of 29 August 2014 was the third iteration, and that exhibited to her supplementary affidavit of 2 September 2014 the fourth.

The defendants’ written submissions were received by the Court late on the day before hearing, 30 September 2014. They referred to a fifth iteration which had been received by them the day before. As no such fifth iteration had been received by the Court, I caused enquiry to be made of the solicitor for the plaintiff who then sent to 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 Rozenblit v Vainer and anor

Details

AGLC: Rozenblit v Vainer and anor [2014] VSC 510
Case: [2014] VSC 510
Decision Date: 10 October 2014

CaseChat Overview and Summary

The plaintiff, Rozenblit, sought leave to amend his statement of claim against the defendants, Vainer and another, in a matter involving the liquidation of a company. The plaintiff's proposed amendments introduced new causes of action based on the liquidation, which were contingent on the assertion that he held an equitable interest in shares via a constructive trust. The plaintiff was not a member of the company during the period of its liquidation.

The central legal issue before the court was whether the plaintiff had a right to pursue these new causes of action. This hinged on whether the plaintiff could establish that he held an equitable interest in the company's shares, which would allow him to challenge the liquidation. The court needed to determine if the plaintiff's proposed amendments were permissible under the circumstances, particularly given his lack of membership at the time of the liquidation.

The court found that the plaintiff did not demonstrate that he would have the right to prosecute a grievance concerning the liquidation based on the proposed constructive trust. The court reasoned that, without membership, the plaintiff could not assert a grievance about the company's liquidation. Consequently, the court refused leave to amend the statement of claim in the proposed manner and in other respects.

The court's decision effectively ended the plaintiff's attempt to introduce new causes of action based on the company's liquidation. The court did not grant leave for the plaintiff to amend his statement of claim, thereby closing the avenue for these particular claims to proceed.

Orders