Sivanantha v Angelie Pty Ltd - [2021] VSCA 333

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2020 0062

KANAGAKULASINGAM SIVANANTHA	Applicant
v
ANGELIE PTY LTD (as trustee of the Angelie Superannuation Trust) and others (according to the attached schedule)	Respondents

S EAPCI 2020 0063

KANESARATNAM JEEVARATNAM	Applicant
v
ANGELIE PTY LTD (as trustee of the Angelie Superannuation Trust) and others (according to the attached schedule)	Respondents

---

JUDGES:	KYROU, KENNEDY and WHELAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 November 2021
DATE OF JUDGMENT:	3 December 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 333
JUDGMENT APPEALED FROM:	[2020] VCC 705 (Judge Macnamara)

---

PRACTICE AND PROCEDURE – Default judgment for possession of land – Application by bankrupt registered proprietors to set aside default judgment, dismissed – Leave to appeal refused – Any rights of action vested in bankruptcy trustees – Applicants had no standing.

PRACTICE AND PROCEDURE – Default judgment for possession of land – Application by chargeholder to be added as a party and for default judgment to be stayed, dismissed – Leave to appeal refused – Discretionary judgment on a matter of practice and procedure – No error of the requisite kind.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant Sivanantha	In Person
For the Applicant Jeevaratnam	In Person
For the First, Second, and Third Respondents	Mr C R Brown with Ms A Tresise	Partners Legal Pty Ltd
For the other Respondents	No appearance

KYROU JA
KENNEDY JA
WHELAN JA:

Before the Court are two applications for leave to appeal from orders of Judge Macnamara made on 8 July 2020[1] in a proceeding in the County Court. Judge Macnamara had before him two summonses in the proceeding. The first was filed on 30 January 2020 on behalf of Kanesaratnam Jeevaratnam (‘Mr Jeevaratnam’) and Janani Jeevaratnam (‘Mrs Jeevaratnam’), seeking to set aside a default judgment for the recovery of land, and other relief. The second was filed on 20 April 2020 by Kanagakulasingam Sivanantha (‘Mr Sivanantha’) seeking an order that he be added as a party to the proceeding, that the default judgment be ‘stayed’, and other relief. His Honour dismissed both summonses. He published his reasons.[2] On 8 July 2020, his Honour dealt with the issue of costs.[3]
[1]The applications seek leave to appeal from a decision made on 2 June 2020 which was the date upon which Judge Macnamara published his reasons. The relevant order was made on 8 July 2020.
[2]Angelie Pty Ltd v Jeevaratnam [2020] VCC 705 (‘Reasons’).
[3]Angelie Pty Ltd v Jeevaratnam [2020] VCC 989.

Mr Jeevaratnam now seeks leave to appeal from so much of his Honour’s judgment as related to the dismissal of his and his wife’s summons, and Mr Sivanantha seeks leave to appeal from so much of the judgment as dismissed his summons.

Mr Jeevaratnam and Mr Sivanantha appeared for themselves on their respective applications for leave to appeal. Counsel appeared on behalf of the first, second and third respondents to each application. The first, second, and third respondents are the plaintiffs in the proceeding.…

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.

Keep reading for free

Create a free CaseChat account to read Sivanantha v Angelie Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] VSCA 333
Decision Date: 3 December 2021

CaseChat Overview and Summary

Sivanantha v Angelie Pty Ltd involved a dispute over the possession of land, with the plaintiffs seeking to set aside a default judgment entered against them. The defendants, Angelie Pty Ltd, were the registered proprietors of the property and sought to enforce the default judgment. The matter was heard in the Supreme Court of New South Wales. The plaintiffs, Sivanantha, sought to have the default judgment set aside and to be added as a party to the proceedings. They also sought to stay the default judgment pending the outcome of their application.

The legal issues before the court were whether the plaintiffs had standing to apply to set aside the default judgment, whether the chargeholder, Angelie Pty Ltd, should be added as a party, and whether the default judgment should be stayed. The court considered the statutory provisions governing bankruptcy and the rights of trustees in bankruptcy, as well as the relevant rules of court. The court found that the plaintiffs had no standing to apply to set aside the default judgment as any rights of action they may have had were vested in the bankruptcy trustees. The court also found that there was no error in the decision to refuse leave to appeal.

The court further found that there was no error in the decision to refuse the application to add the chargeholder as a party or to stay the default judgment. The court held that the decision to grant or refuse discretionary judgment in matters of practice and procedure was a matter within the discretion of the court and that no error of the requisite kind had been made. The plaintiffs' application to set aside the default judgment, to be added as a party, and to stay the default judgment were dismissed, and leave to appeal was refused.

Orders