Vella v Waybecca Pty Ltd (No 2) - [2015] VSC 678

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2014 3536

JOSEPH VELLA	Plaintiff
v
WAYBECCA PTY LTD (ACN 143 303 511)	Defendant

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JUDGE:	Lansdowne AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	27 November 2014 and further written submissions
DATE OF JUDGMENT:	30 November 2015
CASE MAY BE CITED AS:	Vella v Waybecca Pty Ltd (No 2)
MEDIUM NEUTRAL CITATION:	[2015] VSC 678

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APPEAL FROM THE MAGISTRATES’ COURT – appeal from an enforcement order - whether that order is a ‘final order’ – held that it is interlocutory and so appeal is incompetent – consideration of the claimed questions of law if appeal was competent – jurisdiction of the Magistrates’ Court to order a registrar of the court to sign a transfer and the plaintiff to take the other necessary steps to complete a contract for the sale of land - where the transferor has failed to comply with previous orders to do so – jurisdiction of the Magistrates’ Court to order the Registrar of Titles to register the transfer – whether there was any breach of procedural fairness – whether magistrate changed an earlier judgment that he could not make such an order – questions of the validity of the underlying contract do not arise where not raised below – Magistrates’ Court Act 1989 (Vic) ss 100, 109, 135 – Magistrates’ Court General Civil Procedure Rules 2010 r 66.11.

CHARTER – whether any claimed issue properly arises of arguable breach of a Charter right – whether any interpretation other than the plain interpretation of a statutory provision arises in respect of limitation of a right of audience to the party or a legal practitioner- Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 7,8,10, 24 and 32.

CONSTITUTION – whether adjournment required pursuant to s 78B Judiciary Act 1903 (Cth) - held no as no constitutional matter properly arises.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	In person with Mr R Giza as a McKenzie friend
For the Respondent	Mr P Baker	Falcone and Adams Australia Lawyers

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

This proceeding............................................................................................................................. 1
Proceeding in the Magistrates’ Court........................................................................................ 1
Procedural history of the appeal................................................................................................ 2

Issues.................................................................................................................................................... 5

Factual background and proceeding in the Magistrates’ Court................................................ 8

Contract for sale of Unit 34.......................................................................................................... 8
Proceedings in the Magistrates’ Court..................................................................................... 10
Appellant’s factual contentions................................................................................................ 12

Notice of Constitutional Matter..................................................................................................... 15

Legal principles........................................................................................................................... 15
Application of these principles to this Notice........................................................................ 18

Is the order a ‘final order’?.............................................................................................................. 20

Questions of Law in the Notice of Appeal.................................................................................. 25

Questions of Law 2.2-2.5............................................................................................................ 25
Questions of Law 2.1 and 2.9.................................................................................................... 35
Hearing on 19 November 2013........................................................................................ 36
Hearing on 11 December 2013......................................................................................... 38
Hearing on 6 June 2014..................................................................................................... 40

Question of Law 2.6.................................................................................................................... 45
Questions of Law 2.7 and 2.8.................................................................................................... 46

Questions under the Charter.......................................................................................................... 47

Conclusion and orders.................................................................................................................... 51

HER HONOUR:

Introduction
This proceeding

This proceeding commenced by notice of appeal filed 4 July 2014 (‘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.

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Details

Case: [2015] VSC 678
Decision Date: 30 November 2015

CaseChat Overview and Summary

Vella v Waybecca Pty Ltd (No 2) concerns an appeal from the Magistrates’ Court, focusing on the enforcement of an order relating to the sale of land. The plaintiff, Vella, sought to enforce an order that the Registrar of Titles register a transfer of land to her, after the previous order for the defendant, Waybecca Pty Ltd, to sign the transfer had been ignored. The Magistrates’ Court had granted the order, and Vella appealed to the Supreme Court of Victoria, arguing that the order was interlocutory and thus not appealable.

The legal issues before the court involved the nature of the enforcement order and whether it was a final order capable of being appealed. The court also examined the jurisdiction of the Magistrates’ Court to compel the Registrar to sign the transfer and the validity of the order in the context of procedural fairness and the magistrate’s earlier judgment. Additionally, the court considered whether any constitutional or Charter issues were properly before it.

The Supreme Court found that the order was interlocutory and not a final order, thus rendering the appeal incompetent. The court noted that the jurisdiction to compel a registrar to sign a transfer and the authority to order the Registrar of Titles to register the transfer were within the Magistrates’ Court’s powers. The court further held that there was no breach of procedural fairness, and no earlier judgment was altered in a manner that would invalidate the order. The court declined to consider the validity of the underlying contract, as this issue had not been raised in the Magistrates’ Court. The court also dismissed the arguments concerning the Charter of Human Rights and Responsibilities Act and the Judiciary Act 1903, finding that no constitutional or Charter issues were properly before it.

The Supreme Court dismissed the appeal and made no further orders.

Orders