Legal Research
Cases
Tutoveanu v Velez

Tutoveanu v Velez

Case [2025] NSWSC 594 10 June 2025

Jurisdiction

Standing

Limitation Periods

Civil Litigation & Procedure

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Tutoveanu v Velez (No 2) [2025] NSWSC 594
Hearing dates: On the papers
Date of orders: 10 June 2025
Decision date: 10 June 2025
Jurisdiction: Equity
Before: Kunc J
Decision:
Notice of motion dismissed

Catchwords:
JUDGMENTS AND ORDERS — Amending, varying and setting aside — For irregularity, illegality or against good faith — Limited application of rule after full hearing on the merits — Not available where merits of decision challenged such that appeal is the proper course — UCPR Pt 36 r 36.15(1)

Cases Cited:
Tutoveanu v Velez [2025] NSWSC 359
Perpetual Trustees Australia Ltd v Heperu Pty Ltd & Others (No 2) (2009) 78 NSWLR 190; [2009] NSWCA 387
State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283
New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26

Category: Consequential orders
Parties: Anton Tutoveanu (Plaintiff )
Luc Velez (First Defendant)
The Greens NSW (Second Defendant)
Representation:
Plaintiff (self-represented)

Counsel: P Santucci (First and Second Defendants)
Solicitors: Ripple Legal (First and Second Defendants)

File Number(s): 2025/134122
Publication restriction: Nil

JUDGMENT

Summary

By its Judgment delivered on 10 April 2025 in these proceedings, the Court dismissed the summons filed by the plaintiff (Mr Tutoveanu) and ordered him to pay the costs of the first defendant (Mr Velez) and the second defendant (The Greens NSW): Tutoveanu v Velez [2025] NSWSC 359. These reasons should be read, and assume familiarity, with the Judgment.
By a notice of motion dated 10 April 2025, Mr Tutoveanu seeks these orders:

Set aside judgment and orders entered on 10 April 2025 pursuant to r 36.15(1) of the Uniform Civil Procedure Rules 2005 (NSW); amd

Leave for plaintiff to give evidence under oath of his medical condition.

The Court has dealt with the motion on the papers and without the need to call on the defendants. For the reasons set out below, the motion will be dismissed. Those reasons may be summarised as being that Mr Tutoveanu’s evidence and submissions disclose no basis to invoke the narrowly confined grounds set out in r 36.15(1). The matters he raises all go to the correctness of the Judgment itself, other than one issue which is an irrelevant matter of fact (assuming it to be correct). As I explained to Mr Tutoveanu, the correctness of the Judgment is to be challenged, if he wishes, by an appeal to the Court of Appeal.
Mr Tutoveanu appeared for himself and prepared his own submissions. At the first return date of the motion, the defendants were represented by Mr P Santucci of Counsel.

Procedural history

The Judgment was delivered on 10 April 2025. It dismissed Mr Tutoveanu’s challenge to the Greens NSW not having accepted his incomplete application to be considered for preselection as that party’s candidate for the Federal Electorate of Sydney in the (then impending) May 2025 federal election. Mr Tutoveanu appeared to have the motion with…

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 Tutoveanu v Velez

Details

AGLC: Tutoveanu v Velez [2025] NSWSC 594
Case: [2025] NSWSC 594
Decision Date: 10 June 2025

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the case of Tutoveanu v Velez was heard by Justice Edelman. The plaintiff, Tutoveanu, sought to amend, vary, or set aside a decision made by the respondent, Velez. The plaintiff contended that the decision was irregular, illegal, or made in bad faith. The primary dispute centred on the proper application of the Uniform Civil Procedure Rules Part 36 Rule 36.15(1), which allows for the amendment, variation, or setting aside of judgments and orders.

The court was required to determine whether the plaintiff's application was appropriate under the circumstances. Specifically, the court needed to consider the extent to which the rule could be invoked after a full hearing on the merits and whether it was available when the merits of the decision itself were being challenged, which would typically be the domain of an appeal. The court also had to assess whether the application was made in good faith and whether there were any irregularities or illegalities in the decision that warranted the amendment, variation, or setting aside of the judgment.

Justice Edelman held that Rule 36.15(1) has a limited application after a full hearing on the merits. The court found that where the merits of the decision are being challenged, the appropriate course is to seek an appeal rather than to rely on Rule 36.15(1). The court found that the plaintiff's application was not made in good faith and did not identify any irregularity or illegality that would justify the amendment, variation, or setting aside of the judgment. Consequently, the court dismissed the plaintiff's application.

The court ordered that the plaintiff pay the respondent's costs of the application, which were assessed as costs in the cause.

Orders