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Velissaris v Dynami Pty Ltd

Velissaris v Dynami Pty Ltd

Case [2013] VSCA 299 24 October 2013

Appeal

Res Judicata

Injunction

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2011 0008

GEORGE VELISSARIS	Appellant
	v
DYNAMI PTY LTD and BETTY (PANAGIOTA) ZERVAS	Respondents

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JUDGES	TATE, OSBORN and WHELAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	14 October 2013
DATE OF JUDGMENT	24 October 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 299
JUDGMENT APPEALED FROM	Velissaris v Dynami Pty Ltd and Zervas [2010] VSC 587, Sifris J

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PERSONAL PROPERTY – Appeal against decision that appellant had not established ownership or right to possession of plant and equipment sold by liquidator of company – Failure by appellant to prove ownership of plant and equipment – No denial of procedural fairness – Appeal dismissed.

COURTS – Inherent jurisdiction – Appeal against orders restraining institution of further proceedings – Whether power exists to make such orders – Commonwealth Trading Bank v Inglis & Anor (1974) 131 CLR 311 and von Risefer v Permanent Trustee Co Ltd [2005] 1 Qd R 681 considered – Orders confined to further proceedings which are in substance an attempt to re-litigate a matter already decided – Width of order – Order varied.

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Appearances:	Counsel	Solicitors
The Appellant in Person
For the Respondents	Mr D T Forbes	Stonnington & Zervas

TATE JA:

I have had the benefit of reading, in draft form, the reasons of Osborn and Whelan JJA.

I agree with Whelan JA that the inherent jurisdiction of the Supreme Court of Victoria extends to the making of an order restraining a party from bringing applications, or instituting new proceedings, which are in substance an attempt to relitigate matters that have already been determined by the Court. As Lord Phillips MR said in Bhamjee v Forsdick:

A court's overriding objective is to deal with cases justly. This means, among other things, dealing with cases expeditiously and allotting to them an appropriate share of its resources (while taking into account the need to allot resources to other cases). This objective is thwarted and the process of the court abused if litigants bombard the court with hopeless applications. They thereby divert the court's resources from dealing with meritorious disputes, delay the handling of those disputes, and waste skilled and scarce resources on matters totally devoid of any merit.[1]

[1][2004] 1 WLR 88, 93 [15].

I also agree with Whelan JA that that the order made by Sifris J was too wide and that it should be restricted to the subject-matter of his Honour’s judgment.

I agree with Osborn JA that the multiplicity of proceedings brought by the appellant, and applications made within those proceedings, create a real risk that, without appropriate restraint, he will seek to relitigate the issues relating to the plant and equipment that was sold by the Liquidator of Maryvell Investments Pty Ltd to Stonnington Online Conveyancing Pty Ltd, pursuant to clause 22.7 of the lease. The history of the litigation described by Osborn JA[2] justifies a restraining order in this case to prevent an abuse of the Court’s processes and, as…

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 Velissaris v Dynami Pty Ltd

Details

AGLC: Velissaris v Dynami Pty Ltd [2013] VSCA 299
Case: [2013] VSCA 299
Decision Date: 24 October 2013

CaseChat Overview and Summary

The appeal in Velissaris v Dynami Pty Ltd concerns the determination of ownership and right to possession of certain plant and equipment sold by the liquidator of a company. The appellant, Mr. Velissaris, sought to establish his ownership of the plant and equipment in question, which was contested by the respondent, Dynami Pty Ltd. The case was heard and determined in the Supreme Court of Queensland, with the appeal subsequently brought before the Court of Appeal.

The central legal issues addressed in this case revolved around the appellant's ability to prove his ownership of the plant and equipment, and the extent of the court's inherent jurisdiction in making orders that restrain the institution of further proceedings. The court had to consider whether there was a failure on the part of the appellant to prove his ownership, and whether the orders made by the lower court were procedurally fair and appropriate. Additionally, the court examined the inherent jurisdiction of the court to make orders that restrain the institution of further proceedings and the circumstances under which such orders are appropriate.

The Court of Appeal found that the appellant had not succeeded in establishing ownership or a right to possession of the plant and equipment. The court noted that there was no denial of procedural fairness in the proceedings. In relation to the inherent jurisdiction, the court examined relevant authorities, including Commonwealth Trading Bank v Inglis & Anor and von Risefer v Permanent Trustee Co Ltd, to determine the circumstances under which such orders could be made. The Court concluded that the orders made by the lower court were appropriate as they were confined to further proceedings which were in substance an attempt to re-litigate a matter already decided. However, the width of the order was varied to ensure it was not overly broad.

The final orders of the Court of Appeal dismissed the appeal and varied the orders of the lower court to ensure they were appropriately confined and not overly broad in scope.

Orders