JUDGE:	Lansdowne AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	24 July 2015 and 2 September 2015
DATE OF JUDGMENT:	16 December 2015
CASE MAY BE CITED AS:	Rozenblit v Vainer and anor (No 3)
MEDIUM NEUTRAL CITATION:	[2015] VSC 731

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PRACTICE AND PROCEDURE – third application on summons for leave to amend the statement of claim - pleading defects now cured – consideration of discretionary factors – Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 applied - delay - initial absence of explanation – nature of explanation when provided – wasted costs – failure to pay costs orders – expanded trial – likelihood of future costs and further delay to trial – leave to amend granted on payment of outstanding costs orders.

PRACTICE AND PROCEDURE – application for dismissal or stay for non-payment of costs - consideration of Gao v Zhang (2005) 14 VR 380 – consideration of discretionary factors –stay ordered – Supreme Court (General Civil Procedure) Rules 2015 r 63.03(3).

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

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Plaintiff’s application for leave to amend...................................................................................... 3

Background to the application.................................................................................................... 3
Pleading objections....................................................................................................................... 5
Knowing inducement of breach of trust.......................................................................... 6
Knowing assistance to breach of trust.............................................................................. 8
Quantum of loss arising from the liquidation of VRT Global................................... 10
Summary............................................................................................................................. 12

Discretionary considerations..................................................................................................... 12
Delay. .................................................................................................................................. 14
Explanation......................................................................................................................... 16
Impact on the future of the proceeding.......................................................................... 18
The plaintiff’s case............................................................................................................. 19
Costs. .................................................................................................................................. 20

Application for stay or dismissal................................................................................................... 23

Legal principles........................................................................................................................... 23
Submissions................................................................................................................................. 26
Discussion.................................................................................................................................... 28
Conclusion................................................................................................................................... 36

Outcome of the two applications................................................................................................... 37

HER HONOUR:

Introduction

These reasons relate to two summonses heard by me on 24 July 2015 and 2 September 2015. The plaintiff filed a summons on 7 July 2015, seeking leave to file and serve an amended statement of claim. The defendants filed their summons on 17 July 2015, seeking that the proceeding be dismissed or, in the alternative, stayed by reason of the plaintiff’s failure to pay certain costs orders. Both summonses are opposed.

At the time the defendants’ summons was filed there was only one outstanding costs order, being costs ordered by me to be paid on 20 October 2014 and fixed by consent in the sum of $22,000 by the orders of Costs Registrar Ratcliffe on 15 December 2014. When the matter came before me again on 2 September 2015, a second costs order that I had made on 24 June 2015 had been fixed by consent in the sum of $ 28,000 by the order of Costs Registrar Deviny made on 12 August 2015. I gave leave to the defendants, without objection from the plaintiff, to amend the summons so that it refers…

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 (No 3)

Details

AGLC: Rozenblit v Vainer (No 3) [2015] VSC 731
Case: [2015] VSC 731
Decision Date: 16 December 2015

CaseChat Overview and Summary

The case of Rozenblit v Vainer (No 3) involved the plaintiff, Rozenblit, who made a third application for leave to amend their statement of claim against the defendant, Vainer. The dispute was handled by the Supreme Court of Victoria. The plaintiff sought to correct several defects in their initial pleadings, which had been the subject of previous applications. The legal issues before the court involved the discretionary factors that should be considered when deciding whether to allow such an amendment, particularly in light of the established principles set out in Aon Risk Services Australia Ltd v Australian National University. The court also had to weigh the impact of delay, the adequacy of the explanation provided for that delay, and the financial implications, including the payment of outstanding costs orders and the potential for further costs and delays if the amendment was allowed.

The court examined the factors set out in Aon Risk Services Australia Ltd v Australian National University, noting that the plaintiff had not provided a satisfactory explanation for the initial delay in amending the statement of claim. The explanation that was eventually provided was deemed insufficient to justify the delay. The court also considered the costs incurred due to the delay and the plaintiff's failure to pay previous costs orders. The potential for an expanded trial and further costs and delays if the amendment was permitted were significant factors in the court's decision. Despite these concerns, the court concluded that leave to amend should be granted, contingent on the payment of the outstanding costs orders.

In addition to the application for leave to amend, the court also dealt with an application for dismissal or stay for non-payment of costs. The court referred to the principles in Gao v Zhang, considering the discretionary factors relevant to the decision. Ultimately, the court ordered a stay under Supreme Court (General Civil Procedure) Rules 2015 rule 63.03(3), reflecting the significant impact of the plaintiff's failure to meet their financial obligations. The court's decision was influenced by the need to uphold the integrity of the legal process and to manage the court's resources effectively.

The final orders of the court granted leave to amend the statement of claim on the condition that the plaintiff paid the outstanding costs orders. Additionally, a stay was ordered in relation to the non-payment of costs, enforcing compliance with the court's financial directives.

Orders