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Vishniakov v Lay

Vishniakov v Lay

Case [2019] VSC 403 20 June 2019

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Jurisdiction

Discovery & Disclosure

Civil Litigation & Procedure

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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

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

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…

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 Vishniakov v Lay

Details

AGLC: Vishniakov v Lay [2019] VSC 403
Case: [2019] VSC 403
Decision Date: 20 June 2019

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