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Velissaris v Fitzgerald

Velissaris v Fitzgerald

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Case Copied 27 June 2014 53 min read

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCI 2014 0033

GEORGE VELISSARIS	Applicant
v
LAURENCE A FITZGERALD and BDO KENDALS (VIC & NSW) PTY LTD	First Respondent
LAURENCE A FITZGERALD and BDO KENDALS (VIC & NSW) PTY LTD	Second Respondent

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JUDGES	ASHLEY and MANDIE JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	20 June 2014
DATE OF JUDGMENT	27 June 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 139
JUDGMENT APPEALED FROM	Velissaris v Fitzgerald and Anor (Unreported, County Court of Victoria, Judge Macnamara, 17 March 2014)

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COURTS – Practice and procedure – Leave to appeal – Appeal – Proceeding in County Court by alleged beneficial owners against liquidator of now deregistered company for sales of land and plant and equipment at alleged undervalue – Previous proceedings in Federal Court of Australia and Supreme Court referable to sales of this property at undervalue – Bringing of further proceedings in those courts restrained except by leave of court – County Court proceeding forever stayed and order restraining further proceedings in that court except by leave – Reliance by judge upon issue estoppels – Whether previous proceedings gave rise to issue estoppels or res judicata – No issue estoppels or res judicata – Proceeding in County Court relating to sale of land an attempt to avoid restraints imposed by superior courts – Abuse of process for claim to be brought in County Court – Anshun estoppel available to liquidator, and assured of success, in relation to claim for sale of plant and equipment at undervalue – Claim summarily dismissed under Civil Procedure Act 2010 (Vic) s 63 – Appeal allowed so as to vary orders made in County Court – Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Zappia with Mr T Clarke	Victorian Bar Court of Appeal Duty Barrister Scheme
No appearance for the First Respondent

ASHLEY JA:

The impugned orders

George Velissaris (‘the appellant’) seeks leave to appeal from orders made by a judge in the County Court on 17 March 2014. The orders were as follows:

1. This proceeding be forever stayed.
2.The plaintiff is restrained from taking any further step in this proceeding or filing any further proceeding in this Court against the first defendant regarding or in any way relating to:
a. the property known as 333-335 Sydney Road Brunswick;
b.the business formerly carried on at that address by the deregistered company Maryvell Investments Pty Ltd ACN 0808 327 073 or by the plaintiff;
c.the ownership of the plant and equipment once used or located at 333-335 Sydney Road Brunswick; or
d.the affairs of the deregistered company Maryvell Investments Pty Ltd ACN 080 327 073;

without first obtaining the leave of a judge of this Court.
3.The plaintiff pay the first defendants’ costs of the proceeding to date including the costs of his summons filed 20 February 2014.

Leave to appeal

There is a question whether leave to appeal is necessary. It was said by this Court in Kermani v Westpac Banking Corporation,[1]…

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.

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Details

Case: [2014] VSCA 139
Decision Date: 27 June 2014

CaseChat Overview and Summary

In the matter of Velissaris v Fitzgerald, the dispute involved the alleged beneficial owners of a now deregistered company, who were proceeding against the liquidator in the County Court. They claimed that sales of land and plant and equipment by the liquidator were conducted at an undervalue. Prior to this action, there were related proceedings in the Federal Court of Australia and the Supreme Court concerning the sales of the same property at an undervalue. The County Court was restrained from further proceedings unless by leave of the court, and these proceedings were stayed indefinitely. The judge relied on issue estoppels, which the parties argued did not arise from the previous proceedings.

The court was required to decide whether the previous proceedings in the Federal Court and Supreme Court had resulted in issue estoppels or res judicata. The County Court's decision hinged on whether the prior proceedings could prevent the current action from proceeding. The court also needed to determine whether the attempt to bring the current proceedings in the County Court constituted an abuse of process, particularly in light of the restraints imposed by the superior courts. Additionally, the court had to consider whether the liquidator could successfully rely on Anshun estoppel in relation to the claim about the sale of plant and equipment at an undervalue.

The court found that the previous proceedings did not result in issue estoppels or res judicata. It held that the attempt to bring the current proceedings in the County Court was an abuse of process, as it sought to circumvent the restraints imposed by the superior courts. The court also concluded that the liquidator was assured of success in relation to the Anshun estoppel claim concerning the sale of plant and equipment. Consequently, the County Court's proceedings were summarily dismissed under the Civil Procedure Act 2010 (Vic) section 63. The appeal was allowed, varying the orders made in the County Court. The principles from Port of Melbourne Authority v Anshun Pty Ltd were applied in reaching the decision.

The final orders included allowing the appeal to vary the orders made in the County Court and affirming the application of Anshun estoppel in the liquidator's favour concerning the sale of plant and equipment. The County Court's proceedings were dismissed, and the restraints on further proceedings in that court remained in place, except by leave.

Orders