Trani v Trani - [2019] VSC 294

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S ECI 2018 01356

PATRIZIA TRANI	First Applicant
ASCENDED MASTERY PTY LTD (ACN 163 217 936)	Second Applicant
v
MARCO TRANI	First Respondent
LUCIANO TRANI	Second Respondent

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JUDGE:	KAYE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	3 May 2019
DATE OF JUDGMENT:	7 May 2019
CASE MAY BE CITED AS:	Trani & Anor v Trani & Anor
MEDIUM NEUTRAL CITATION:	[2019] VSC 294

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PRACTICE AND PROCEDURE – Appeal against decision of Associate Justice dismissing application to set aside judgment obtained in default of defence – Whether judgment entered regularly – Whether Supreme Court has jurisdiction to hear proceeding – Whether proceeding an application in respect of co-owned property under Part IV of the Property Law Act 1958 (Vic) – Proceeding not an application under Part IV – No defence on the merits – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicants:	Mr J Levine	The Law Professionals
For the Respondents:	Mr D Peries (Solicitor)	Robert James Lawyers

HIS HONOUR:

This is an appeal by the first defendant and the second defendant from a decision of an Associate Justice which dismissed their application to set aside judgment entered against them in default of defence in the proceeding.[1]
[1]Trani v Trani [2019] VSC 2 (‘Reasons’).

The first plaintiff and the second plaintiff are brothers, and the first defendant is their sister. The second defendant is a company controlled by the first defendant. Until July 2018, the plaintiffs and the first defendant owned a family beach house at 331 Dromana Parade, Safety Beach (‘the property’) as tenants in common in equal shares. The third defendant in the proceeding is a conveyancer who was engaged by the first defendant to sell the property.

On 17 September 2018, the plaintiffs issued the proceeding alleging that the first defendant sold the property to a third party, Ayla Han (‘Han’), without their knowledge or consent, and had forged their signatures on the transfer of land documents that were lodged with the Registrar of Titles. It is alleged that the second defendant is liable as a knowing recipient of the proceeds of the sale of the property, and that the third defendant is liable for misrepresentations allegedly made by her to the Registrar of Titles that she was authorised to execute the transfer of land documents on behalf of the plaintiffs.

After service of the proceeding, the solicitors for the first and second defendants filed an appearance on 21 September 2018. Pursuant to rule 14.04 of the Supreme Court (General Civil Procedure) Rules 2015, they had 30 days within which to file a defence. On 1 November 2018, the plaintiffs entered judgment for damages as the first and second defendants had failed to file any defence to the plaintiffs’ claims. On 3 December, a summons was issued on behalf of the first and second defendants by which they made application to set aside the judgment. The first…

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 Trani v Trani

Details

AGLC: Trani v Trani [2019] VSC 294
Case: [2019] VSC 294
Decision Date: 7 May 2019

CaseChat Overview and Summary

In the case of Trani v Trani, the appellant sought to appeal a decision by an Associate Justice to dismiss an application to set aside a judgment obtained in default of defence. The judgment was sought by the respondent against the appellant in relation to a dispute over the management of co-owned property. The application to set aside the judgment was dismissed on the basis that the judgment had been entered regularly and that the Supreme Court lacked jurisdiction to hear the proceeding as it did not constitute an application in respect of co-owned property under Part IV of the Property Law Act 1958 (Vic).

The primary legal issue before the court was whether the proceeding constituted an application in respect of co-owned property under Part IV of the Property Law Act 1958 (Vic). The court considered whether the Supreme Court had jurisdiction to hear the proceeding and whether the judgment had been entered regularly. The court also considered whether there was a defence on the merits to the claim made by the respondent.

The court found that the proceeding was not an application under Part IV of the Property Law Act 1958 (Vic) and therefore the Supreme Court lacked jurisdiction to hear it. The court further found that the judgment had been entered regularly and that there was no defence on the merits to the claim made by the respondent. As such, the appeal was dismissed. The court held that the proceeding was not an application in respect of co-owned property under Part IV of the Property Law Act 1958 (Vic) and that the Supreme Court lacked jurisdiction to hear it. The court also found that the judgment had been entered regularly and that there was no defence on the merits to the claim made by the respondent.

Orders