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Rozenblit v Vainer [No 4]

Rozenblit v Vainer [No 4]

Case [2016] VSC 451 4 August 2016

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT MELBOURNE
COMMERCIAL COURT

S CI 2013 06645

BORIS ROZENBLIT	Plaintiff
v
MICHAEL VAINER and ALEXANDER VAINER	Defendants

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JUDGE:	CAMERON J
WHERE HELD:	Melbourne
DATE OF HEARING:	23, 31 May & 20 June 2016
DATE OF JUDGMENT:	4 August 2016
CASE MAY BE CITED AS:	Rozenblit v Vainer and anor (No 4)
MEDIUM NEUTRAL CITATION:	[2016] VSC 451
JUDGMENT APPEALED FROM:	Rozenblit v Vainer (No 3) [2015] VSC 731 (LANSDOWNE AsJ)

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PRACTICE AND PROCEDURE – Appeal from an Associate Judge – Whether the Associate Judge erred in staying the proceeding – Supreme Court (General Civil Procedure) Rules 2015 r 77.06 – Discretionary power –.Stay of the proceeding – Impecunious litigant – Failure to pay consent costs orders – Order staying proceeding indefinitely unless costs paid - Numerous iterations in applying for leave to amend a statement of claim – Consideration of Gao v Zhang (2005) 14 VR 380 – Supreme Court (General Civil Procedure) Rules 2015 r 63.03(3).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Korman
For the Defendants	Mr M McNamara	CIE Legal

HER HONOUR:

What is this case about?

This is an appeal by way of notice of appeal dated 13 January 2016 from orders made by Lansdowne AsJ on 22 December 2015. Her Honour ordered that the proceeding be stayed until the plaintiff paid the amounts outstanding to the defendants pursuant to two previous costs orders that her Honour had made, and made ancillary orders as to the conduct of the proceeding.[1]
[1]Order of Costs Registrar Ratcliffe made on 15 December 2014; Order of Costs Registrar Deviny made on 12 August 2015.

Relevant background facts

The background of the case, relevantly, may be summarised as follows.

The plaintiff and the first defendant jointly owned a tyre recycling company, VR Tek Global (the company) in which the plaintiff contributed technology and the first defendant contributed commercial expertise. A unit trust was set up so that the plaintiff owned 45% and the first defendant owned 55% of the interests in the company. The company went into voluntary liquidation in November 2012.

In late 2011, a shareholders’ meeting was held in which the first defendant was the only shareholder with voting rights attending. Through proxy voting (purportedly authorised by the plaintiff), the first defendant caused a resolution to be passed unanimously to transfer all ordinary shares to the second defendant who is the father of the first defendant. The plaintiff disputed that authorisation was given to the first defendant to vote in such a way and sued, claiming, initially, inter alia, breach of contract, breach of trust and misleading and deceptive conduct under the Australian Consumer Law.[2] The interlocutory applications in relation to this matter were heard by her Honour.
[2]Australian Consumer Law and Fair Trading Act 2012 (Vic); Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law, s 18.

In the proceeding before her Honour, the plaintiff brought two oral applications for…

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 4]

Details

AGLC: Rozenblit v Vainer [No 4] [2016] VSC 451
Case: [2016] VSC 451
Decision Date: 4 August 2016

CaseChat Overview and Summary

In the matter of Rozenblit v Vainer, the appellant, Mr Rozenblit, sought to appeal an order made by an Associate Judge that stayed the proceedings against the respondent, Mr Vainer. The Associate Judge had stayed the proceedings indefinitely unless Mr Rozenblit paid the outstanding consent costs orders. The appeal was heard by the Supreme Court, which was required to determine whether the Associate Judge erred in staying the proceedings and exercising the discretionary power under the Supreme Court (General Civil Procedure) Rules 2015 r 77.06.

The court was required to consider whether the Associate Judge had erred in staying the proceedings indefinitely. The court also needed to consider whether the Associate Judge had acted within their discretion in applying the Supreme Court (General Civil Procedure) Rules 2015 r 63.03(3) and Gao v Zhang (2005) 14 VR 380 in relation to the numerous iterations in applying for leave to amend the statement of claim.

The court found that the Associate Judge did not err in staying the proceedings. The court held that the Associate Judge had exercised their discretion in accordance with the relevant rules and authorities. The court noted that the impecuniosity of the litigant was a relevant factor in the exercise of the Associate Judge's discretion. The court also held that the numerous iterations in applying for leave to amend the statement of claim was another relevant factor. The court found that the Associate Judge had not erred in staying the proceedings indefinitely unless the outstanding costs were paid.

The court dismissed the appeal and affirmed the decision of the Associate Judge to stay the proceedings indefinitely unless the outstanding costs were paid.

Orders