Vimplane Pty Ltd v Cirss - [2005] VSC 45

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8560 of 2004

VIMPLANE PTY LTD (ACN 005 877 243) AND GEMLEIGH PEAK PTY LTD (CAN 088 556 763)	Plaintiffs
v
BRIGITTE CIRSS	Defendant

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JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 MARCH 2005
DATE OF JUDGMENT:	14 APRIL 2005
CASE MAY BE CITED AS:	VIMPLANE PTY LTD v CIRSS
MEDIUM NEUTRAL CITATION:	[2005] VSC 45

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Practice and Procedure – Application to set aside judgment for possession of property obtained in absence of the defendant – Relevant principles – Application to extend time within which to apply to set aside judgment – Relevant principles – Held inevitable that even on the best outcome the defendant would have to sell the property – Defendant accordingly confined to claim for damages – Rules 3.02 and 49.02 of the Supreme Court Rules.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr G. Bloch	Rockman & Rockman
For the Defendant	Mr P. Vout	Harding Solicitors

HIS HONOUR:

The Application

This is an application by the defendant, Brigitte Cirss, by a summons filed on 24 February 2005 for:

(a)an extension of time pursuant to r.3.02 of the Supreme Court (General Civil Procedure) Rules 1996 ("the Supreme Court Rules") within which to apply to set aside the judgment of the Court entered on 14 December 2004; and
(b)if granted, an order pursuant to r.49.02(2) of the Supreme Court Rules setting aside that judgment on the ground that the defendant was not present before the Court at the hearing of the matter.

The proceeding itself was commenced on 13 October 2004 by an originating motion under O.53 of the Supreme Court Rules seeking the recovery of the land at 20 Westgarth Street, Northcote in the State of Victoria ("the property"). The originating motion, which was returnable on 25 November 2004, was supported by an affidavit sworn on 12 October 2004 by Salvatore Michael Cusmano, a director of the first plaintiff, Vimplane Pty Ltd. On 25 November 2004 the defendant personally filed an appearance. On the same day Master Wheeler, at the request of the defendant, adjourned the hearing to 14 December 2004. The Master directed that any affidavit on behalf of the defendant be filed and served by 10 December 2004. On 14 December 2004 in circumstances which will be examined below Master Wheeler referred the proceeding forthwith to the Judge sitting in the Practice Court. There was no appearance by the defendant before Hansen J, who ordered that the plaintiffs recover possession of the property and that there be a stay on execution for possession for 45 days. A warrant for possession of the property was issued at the request of the plaintiffs on 15 February 2005.

The Factual Background

In her affidavit in support of her application sworn on 24 February 2005, the defendant deposed that she was a trained nurse with clinical qualifications in General Nursing and Psychiatric Nursing. In addition, she had obtained advanced…

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 Vimplane Pty Ltd v Cirss

Details

AGLC: Vimplane Pty Ltd v Cirss [2005] VSC 45
Case: [2005] VSC 45
Decision Date: 14 April 2005

CaseChat Overview and Summary

Vimplane Pty Ltd sought to recover possession of a property from Cirss, which was sold before judgment was entered. Cirss applied to set aside the judgment obtained in his absence and to extend the time within which to apply to set aside the judgment. The court had to determine the relevant principles to consider when deciding whether to set aside a judgment for possession obtained in the absence of the defendant, and the principles to consider when deciding whether to extend the time within which to apply to set aside the judgment.

The court considered the principles set out in the relevant Supreme Court Rules and found that even if the application to set aside the judgment was successful, it was inevitable that the defendant would have to sell the property. Therefore, the defendant was confined to a claim for damages. The court held that the application to extend the time within which to apply to set aside the judgment was not necessary, as the defendant had not shown any special circumstances that would warrant an extension of time.

The court dismissed the application to set aside the judgment and refused to extend the time within which to apply to set aside the judgment. The court found that the defendant had not demonstrated any special circumstances that would warrant an extension of time, and that even if the application to set aside the judgment was successful, it was inevitable that the defendant would have to sell the property. Therefore, the defendant was confined to a claim for damages.

Orders