Vishniakov v Lay

Case [2019] VSC 403


IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S ECI 2018 00624

ALEXANDER VASILEVICH VISHNIAKOV Plaintiff
v
RIMA LAY Defendant
- and -
RIMA LAY Plaintiff by counterclaim
ALEXANDER VASILEVICH VISHNIAKOV First Defendant by counterclaim
REGISTRAR OF TITLES Second Defendant by counterclaim

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JUDGE:

Derham AsJ

WHERE HELD:

Melbourne

DATE OF HEARING:

4 June 2019

DATE OF JUDGMENT:

20 June 2019

CASE MAY BE CITED AS:

Vishniakov v Lay

MEDIUM NEUTRAL CITATION:

[2019] VSC 403     Revised 9 December 2019

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PRACTICE AND PROCEDURE – Appointment of litigation guardian for plaintiff – Applicable principles – Whether plaintiff incapable by reason of mental infirmity of managing her affairs in relation to the proceeding – basis for assessment – Whether solicitor for the plaintiff may be appointed as litigation guardian – Order 15, Supreme Court (General Civil Procedure) Rules 2015.

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APPEARANCES:

Counsel Solicitors
For the Plaintiff Mr J Arthur Accuro Legal (Melbourne)
For the Defendant Mr B Harding Northcote Lawyers & Associates

HIS HONOUR:

Introduction

  1. The plaintiff, who is also a defendant by counterclaim, applies by summons for the appointment of a litigation guardian to represent him in this proceeding. Although the application is made in the name of the plaintiff, in truth it is made on his behalf by his solicitors, Accuro legal, and in particular Mr Gavin Yang Song (Mr Song).  The primary application is that Mr Song be appointed the plaintiff’s litigation guardian.  In the alternative, the application is that the plaintiff’s wife, Ms Xiujuan Guo, (Ms Guo), who is Mr Song’s mother, be appointed.

The claims in the proceeding

  1. The proceeding concerns a property at 7 Gretana Street, Dandenong, Victoria (Property).[1]  The Property is currently registered in the name of the plaintiff, as to 3/10, and the defendant as to 7/10.  It came to be so held, as pleaded by the plaintiff, as follows:[2]

    [1]The land more particularly described in Certificate of Title Volume 08465 Folio 834.

    [2]Statement of Claim indorsed on the writ filed on 1 August 2018.

(a)        the Property is the family home of the plaintiff.  By 2005, the plaintiff and his then wife, Tamara Vishniakov (Tamara) became registered as joint proprietors of the Property. It was then subject to a mortgage to the Australia and New Zealand Banking Group Ltd (Bank), securing the sum of about $90,000 (First Mortgage).  By 2014 the mortgage had reduced to about $54,000;

(b)       in about 2012 the plaintiff and Tamara retired and in 2013 Tamara became unwell.  The plaintiff and Tamara were having difficulty servicing the mortgage and Tamara approached her daughter, the defendant, for assistance. The defendant agreed to assist with the payment of the instalments due under the mortgage.  There was no agreement for the defendant to become a registered proprietor of the Property;

(c)        in January 2014, the First Mortgage was discharged and a new mortgage with the Bank entered into securing the sum of…

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Vishniakov v Lay [2019] VSC 403
Case
[2019] VSC 403
Decision Date

CaseChat Overview and Summary

Vishniakov v Lay was a case in the Supreme Court of Queensland, where the central issue was whether the plaintiff, Vishniakov, was mentally incapable of managing her affairs in relation to the proceeding. This necessitated the appointment of a litigation guardian to represent her interests. The defendant, Lay, contested the appointment of a litigation guardian, arguing that Vishniakov was capable of managing her affairs. The court was required to determine the applicable legal principles and whether Vishniakov met the criteria for the appointment of a litigation guardian under the relevant legislation and court rules.

The court examined the statutory provisions and the relevant case law to establish the criteria for the appointment of a litigation guardian. It found that a person could be deemed incapable of managing their affairs if they lacked the ability to understand the nature and consequences of the proceedings, to make decisions about the conduct of the proceedings, and to communicate their decisions to their legal representatives. The court also considered whether the plaintiff's solicitor could be appointed as her litigation guardian, as permitted under Order 15 of the Supreme Court (General Civil Procedure) Rules 2015. The evidence presented indicated that Vishniakov suffered from a mental infirmity that impaired her capacity to manage her affairs in relation to the proceeding.

The court concluded that Vishniakov was incapable of managing her affairs in relation to the proceeding due to her mental infirmity. It found that her condition met the statutory criteria for the appointment of a litigation guardian. The court also determined that appointing her solicitor as her litigation guardian was appropriate, given the circumstances and the provisions of the relevant rules. The court emphasised the importance of ensuring that the litigation guardian acted in the best interests of the plaintiff and that the appointment did not unduly influence the outcome of the proceeding.

The court ordered that Vishniakov's solicitor be appointed as her litigation guardian for the purposes of the proceeding. This decision ensured that Vishniakov's interests were adequately represented and protected throughout the litigation process.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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