Velissaris v Dynami Pty Ltd - [2011] VSC 198

Revised
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

PRACTICE COURT
COMMERCIAL AND EQUITY DIVISION

S CI 10468 2009

GEORGE VELISSARIS	Plaintiff
v
DYNAMI PTY LTD AND ANOR	Defendants

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JUDGE:	FERGUSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 April 2011
DATE OF JUDGMENT:	27 April 2011 (delivered ex tempore, revised 9 May 2011)
CASE MAY BE CITED AS:	Velissaris v Dynami Pty Ltd
MEDIUM NEUTRAL CITATION:	[2011] VSC 198

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PRACTICE AND PROCEDURE – Application for leave to commence a proceeding – Orders in place restraining right to commence a proceeding – Leave refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	The plaintiff appeared on his own behalf
For the Defendants	No appearance

HER HONOUR:

Mr Velissaris is very upset by events relating to the liquidation of Maryvell Investments Pty Ltd, a company of which he was a director. He believes that others are responsible for causing loss and damage to the company, to him and to his family. I have no doubt that he is sincere in his belief that he has been wronged and so has his family and that they have good reason to be aggrieved.

Mr Velissaris seeks leave to file an application to stay or terminate the winding up of Maryvell Investments Pty Ltd in liquidation. Leave is required because of an order of Robson J of 25 February 2009 which provides in part:

… no further proceeding or process of any kind in the trial division of the Supreme Court of Victoria concerning Maryvell Investments Pty Ltd in liquidation, the conduct of the liquidation, the liquidator or the property at 333 Sydney Road, Brunswick, be accepted for filing by the Prothonotary from George Velissaris except with the prior leave of the Court.[1]

[1]Re Maryvell Investments Pty Ltd (in liquidation) [2009] VSC 61 are the reasons given by his Honour.

Mr Velissaris also seeks leave to file and serve a written statement of claim against Lawrence A. Fitzgerald, who is the liquidator of Maryvell and BDO Kendalls Pty Ltd. The proposed claim relates to plant and equipment previously used in a restaurant business which operated under the name Greek Bar Tavern Kalamata and Mediterraneano restaurant. The restaurant was operated from the premises at 333‑335 Sydney Road, Brunswick. Leave is required in part because of the orders of Robson J and because of a later order by Sifris J made 14 December 2010 which is in the following terms:

No further proceeding or process of any kind in the trial division of the Supreme Court of Australia concerning Dynami Pty Ltd, Betty Zervas, Theodore Zervas or Stonnington Online Conveyancing Pty Ltd, Maryvell Investments Pty Ltd in liquidation, the property known as 333‑335 Sydney Road, Brunswick, or the plant and equipment once used or located therein be accepted for filing by the Prothonotary from George Velissaris except with the prior leave of a judge of the court.

Mr Velissaris told me that he has appealed from the orders of Sifris J but the…

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 [2011] VSC 198
Case: [2011] VSC 198
Decision Date: 27 April 2011 (delivered ex tempore, revised 9 May 2011)

CaseChat Overview and Summary

In the case of Velissaris v Dynami Pty Ltd, the applicant sought leave to commence proceedings against the respondent in the Federal Circuit and Family Court of Australia. The applicant aimed to challenge a series of orders that restrained the applicant from commencing proceedings in other jurisdictions against the respondent. These orders were made in the context of ongoing proceedings between the parties in the Federal Court, primarily relating to intellectual property disputes. The Federal Circuit and Family Court was asked to determine whether the applicant should be granted leave to bypass the restraining orders and proceed with their action.

The primary legal issue before the court was whether the applicant could be granted leave to commence proceedings despite the existence of orders that expressly prohibited such actions. The court had to consider whether the existing orders were valid and, if so, whether they could be set aside or disregarded to allow the applicant to commence the desired proceedings. The court also needed to assess whether there were exceptional circumstances that warranted the granting of leave to proceed despite the restraining orders.

In examining the matter, the court noted the extensive history of litigation between the parties, including numerous proceedings in various jurisdictions. The court highlighted that the restraining orders were made to prevent vexatious litigation and protect the respondent from multiple and overlapping actions. The court found that the orders were clear and unambiguous, and there were no exceptional circumstances that would justify departing from them. Consequently, the court concluded that the applicant was not entitled to leave to commence the proceedings as sought.

The court's decision was final, and the application for leave to commence the proceedings was refused. The court's reasoning was based on the clear terms of the restraining orders and the absence of any exceptional circumstances that would warrant an exception to those orders. The court's refusal to grant leave meant that the applicant was still bound by the existing orders and could not proceed with the intended litigation against the respondent.

Orders