Russell-Davison v Prosin as executor of the Will and estate of Lilli Margareta Prosin

[1999] WADC 44

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   RUSSELL-DAVISON -v- PROSIN as executor of the Will and estate of LILLI MARGARETA PROSIN & ORS [1999] WADC 44

CORAM:   CHARTERS DCJ

HEARD:   4 AUGUST 1999

DELIVERED          :   Delivered Extemporaneously on 4 AUGUST 1999 typed from tape and edited by Trial Judge.

FILE NO/S:   CIVO 37 of 1999

BETWEEN:   BRIAN RUSSELL-DAVISON

Plaintiff (Respondent)

AND

MARIO IGOR PROSIN as executor of the Will and estate of LILLI MARGARETA PROSIN
MARIO IGOR PROSIN
PROSIN INVESTMENTS PTY LTD
Defendants (Appellants)

Catchwords:

Practice and procedure - Appeal from registrar - Application to join third party - Turns on its own facts

Legislation:

Nil

Result:

Appeal dismissed

Representation:

Counsel:

Plaintiff (Respondent)    :     Mr G J O'Hara

Defendants (Appellants) :     Mr R J Black

Solicitors:

Plaintiff (Respondent)    :     Kott Gunning

Defendants (Appellants) :     Murfett & Co

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

1. CHARTERS DCJ:  This application is essentially one by the defendants to issue a third party notice and it arises out of an appeal from the decision of Registrar Hewitt delivered on 4 May 1999 dismissing an application to join one Luka Margaretic as a third party to the action in which Brian Douglas Russell-Davison is the plaintiff. 

2. The relevant history is that on 12 December 1997 an originating summons was issued by Margaret Lilli Prosin, who is now deceased, against Brian Douglas Russell-Davison, ("Mr Russell-Davison") and the Registrar of Titles concerning the removal of a caveat upon premises at East Fremantle.  That originating summons was followed by a defence and counterclaim on behalf of Mr Russell-Davison:  the counterclaim issued on 6 February 1998 sought moneys which allegedly were loaned to Mrs Prosin, deceased, Mr Prosin and Prosin Investments Pty Ltd - loaned pursuant to a loan document.  That is simply an action for the return of moneys loaned. 

3. The defence to that action was filed on 20 March 1998 and on 21 October 1998, that action was entered for trial in the Supreme Court.  That entry for trial was then countermanded on 16 December 1998 for the reason that the defendants to Mr Russell-Davison's action required to issue a third party notice. 

4. On 16 March 1999 the defendants applied to join Luka Margaretic, a legal practitioner, to the action and a third party notice was indeed issued to Luka Margaretic on 28 April 1999. 

5. Mr Russell-Davison's claim is that this action is a very simply straightforward claim, the defence to which is that the loan agreement is void by reason that it was champertous. 

6. The claim by the defendants against Luka Margaretic on the other hand, judging by the statement of claim, is a complex matter arising out of the relationship between the defendants and Margaretic as clients and solicitor and alleges that Margaretic was negligent and in breach of his duties to his clients. 

7. The defendants, I am told by Mr Black on their behalf, have experienced significant difficulties, in particular in obtaining documents from Margaretic, and they are fearful that if the latter is not joined in these proceedings the defendants will be estopped in various respects and prevented from presenting a proper claim against Margaretic. 

8. The issue of estoppel is not touched upon in the outline of the appellants' submissions to me and it is a submission which I believe is misguided.  There is no question at all that the plaintiff's claim would be significantly delayed, both in the programming of it to trial and in the trial process itself if the third party were to be joined as a party to these proceedings.  The plaintiff's costs in such a trial would be increased. 

9. The third party has been issued with a notice, but there has been no formal appearance entered. 

10. There is an insufficient nexus between the third party issue and the issue that remains between Mr Russell-Davison and the defendants which will justify the delay of Mr Russell-Davison's action.  There has also been a significant delay in applying to join the third party and failure to comply with a programming order of Macknay DCJ that a minute of the defendants' draft statement of claim against Margaretic be verified on affidavit by 24 June 1999.  The affidavit sworn on 9 July does not explain that delay. 

11. I am not persuaded that there will be any real prejudice apart from the fact that fresh proceedings will have to be issued, to the defendants should they proceed independently and separately against Margaretic. 

12. I dismiss the appeal.