Vella v Wybecca Pty Ltd - [2014] VSC 443

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PRACTICE COURT

S CI 2014 03536

JOSEPH VELLA	Appellant
v
WYBECCA PTY LTD	Respondent

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JUDGE:	HARGRAVE J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 September 2014
DATE OF JUDGMENT:	12 September 2014	[1^st Revision, 16 September 2014, Page 9, [29] – line 1]
CASE MAY BE CITED AS:	Vella v Wybecca Pty Ltd
MEDIUM NEUTRAL CITATION:	[2014] VSC 443

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PRACTICE AND PROCEDURE – Judicial Review – Appeal from judgment of an associate judge – Whether associate judge erred in prohibiting the holder of a power of attorney who is not a legal practitioner to represent the appellant – Appeal dismissed – Instruments Act 1958 (Vic), s 107(1); Legal Profession Act 2004 (Vic), s 2.2.2 – Waddington v Magistrates’ Court of Victoria & Kha (No 2) [2013] VSC 340; Waddington v Dandenong Magistrates’ Court & Anor [2014] VSCA 12; Supreme Court (General Civil Procedure) Rules 2005, rr 15.01, 15.02(1).

PRACTICE AND PROCEDURE – Role of ‘McKenzie friend’ – Apostolou v Commissioner of State Revenue [2008] VSC 332; McKenzie v McKenzie [1971] P33, 38.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R Giza, by leave, appeared on the question as to whether he should be permitted to represent the Appellant — but not otherwise
For the Respondent	Mr P Baker	Falcone & Adams

HIS HONOUR:

The appellant, Joseph Vella, owned a factory in Keysborough. The mortgagee sold the factory to the respondent by contract of sale dated 18 July 2012.

By deed dated 7 December 2012, the respondent agreed to purchase from Mr Vella an accessory unit adjacent to the factory used for car parking spaces. The agreed price for the sale of the accessory unit was $15,000 plus GST. Settlement was due on 20 December 2012.

The parties to the deed included Mr Vella, the respondent, Richard Giza and a company associated with Mr Vella and Mr Giza. Mr Giza and the associated company were joined as parties to the deed because of their interests in certain goods stored in containers at the factory, about which there was a dispute concerning storage costs. The deed included provisions to enable those goods to be collected in an orderly fashion by Mr Vella, Mr Giza and their company.

Mr Giza did not complete the contract of sale for the accessory unit. The respondent instituted proceedings in the Magistrates’ Court of Victoria seeking specific performance. Mr Vella did not file a defence. Default judgment was entered on 24 June 2013 for specific performance.

On 19 November 2013, the Magistrates’ Court again made an order for specific performance of the contract of sale. Mr Vella appeared at that hearing and his arguments were rejected.

Mr Vella did not comply with the orders for specific performance. In these circumstances, the respondent applied to the Magistrates’ Court for orders that the Registrar of that Court execute a transfer of land to give effect to the contract…

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] VSC 443
Decision Date: 12 September 2014

CaseChat Overview and Summary

In the matter of Vella v Wybecca Pty Ltd, the appellant, represented by a power of attorney, sought to appeal against the judgment of an associate judge who had prohibited the appellant's representative from representing them in court due to the representative not being a legal practitioner. The case was heard in the County Court of Victoria. The central issue before the court was whether the associate judge was correct in prohibiting the appellant's representative from appearing on their behalf.

The court considered the relevant statutory provisions, including section 107(1) of the Instruments Act 1958 (Vic) and section 2.2.2 of the Legal Profession Act 2004 (Vic). Additionally, the court referred to precedents such as Waddington v Magistrates’ Court of Victoria & Kha (No 2) [2013] VSC 340 and Waddington v Dandenong Magistrates’ Court & Anor [2014] VSCA 12, as well as relevant rules under the Supreme Court (General Civil Procedure) Rules 2005. The court also examined the role of a 'McKenzie friend', referencing cases such as Apostolou v Commissioner of State Revenue [2008] VSC 332 and McKenzie v McKenzie [1971] P33, 38.

After considering the statutory framework and the applicable case law, the court found that the associate judge's decision was correct. The court concluded that the associate judge had not erred in prohibiting the representative from acting on behalf of the appellant. The appeal was dismissed, and no further orders were made.

Orders