Visy Board v D'Souza & Ors - [2008] VSC 476

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 4537 of 2006

VISY BOARD	Plaintiff
v
STEPHEN D’SOUZA AND OTHERS	Defendants

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JUDGE:	BYRNE J
WHERE HELD:	Melbourne
DATE OF HEARING:	5, 6 November 2008
DATE OF JUDGMENT:	6 November 2008
CASE MAY BE CITED AS:	Visy Board v D’Souza
MEDIUM NEUTRAL CITATION:	[2008] VSC 476

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PRACTICE AND PROCEDURE – summary judgment by plaintiff – relief not available for claim based on an allegation of fraud – claim based in breach of contract and breach of fiduciary duty – whether claim based on allegation of fraud

RSC R. 22.02(2)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Delany SC and Mr C Archibald	Herbert Geer
For the First Defendant	Mr A Panna SC	Alfred P Mayuka
For the Second Defendant	Mr G Moffatt	Middletons
For the Third to Sixth Defendants	Mr JM Selimi	Starnet Legal

HIS HONOUR:

This is an appeal from the order of the Master made on 17 December 2007 dismissing the application of the plaintiffs whom I shall refer to collectively as Visy Board for summary judgment against the defendants pursuant to Rule 22.02.

The defendants have taken a preliminary point that the relief sought in the application is not available having regard to Rule 22.02(2). The relevant provisions of that rule are as follows

22.02 Application for judgment
(1) Where the defendant has filed an appearance, the plaintiff may at any time apply to the Court for judgment against that defendant on the ground that the defendant has no defence to the whole or part of a claim included in the writ or statement of claim, or no defence except as to the amount of a claim.
(2) Paragraph (1) shall not apply to a claim for libel, slander, malicious prosecution, false imprisonment or seduction or to a claim based on an allegation of fraud.
(3) Where the writ or statement of claim includes a claim within paragraph (2), the plaintiff may apply for judgment in respect of any other claim and continue the proceeding for the first-mentioned claim.

What is said is that the claim in respect of which judgment is sought is "a claim based on an allegation of fraud" within the meaning of that expression in paragraph (2).

The claims of Visy Board are for damages. Against the firstnamed defendant, Stephen D'Souza, and the secondnamed defendant, Mario Murzello, it is alleged that they were employed by one or other of the plaintiffs in the shipping department of Visy Board.[1] As such, they owed to each of the plaintiffs a number of contractual duties including duties of fidelity, good faith, and a duty not to act dishonestly.[2]
[1]Amended statement of claim para 10, 11.
[2]Amended statement of claim para 12.

Other contractual obligations are alleged in paragraphs 13 and 14 of the amended statement of claim. In para 15 it is alleged that they each owed fiduciary duties to each of the plaintiffs. These fiduciary duties…

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: [2008] VSC 476
Decision Date: 6 November 2008

CaseChat Overview and Summary

In the case of Visy Board v D'Souza & Ors, the plaintiff, Visy Board, sought summary judgment against the defendants, D'Souza and others. The plaintiff alleged that the defendants had breached a contract and breached fiduciary duties owed to the plaintiff. The case was heard in the Supreme Court of Queensland, where the plaintiff applied for summary judgment under Rule 22.02(2) of the Uniform Civil Procedure Rules 1999 (Qld). The defendants opposed the application, arguing that the plaintiff's claim was based on an allegation of fraud and therefore not eligible for summary judgment.

The primary legal issue the court had to decide was whether the plaintiff's claim was based on an allegation of fraud. If the claim was based on an allegation of fraud, the court would be unable to grant summary judgment. The court had to determine whether the nature of the claim was such that it required a trial or if the claim was so clear-cut that summary judgment was appropriate. The court also had to consider the relevant legal principles and authorities on the availability of summary judgment in cases involving allegations of fraud.

The court held that the plaintiff's claim was not solely based on an allegation of fraud. Instead, the claim was primarily based on breach of contract and breach of fiduciary duty, which were distinct from fraud. The court found that the plaintiff's allegations of fraud were secondary and incidental to the primary claims. The court noted that while there were allegations of fraud, they did not form the basis of the plaintiff's entitlement to relief. The court concluded that summary judgment was available for the plaintiff's primary claims, as they did not involve any genuine issues of fact that required a trial. The court granted summary judgment in favour of the plaintiff on the claims for breach of contract and breach of fiduciary duty.

The court's final order granted summary judgment in favour of Visy Board against D'Souza and others on the claims for breach of contract and breach of fiduciary duty. The court dismissed the defendants' opposition to the application for summary judgment. The court found that the defendants' allegations of fraud did not preclude the plaintiff from obtaining summary judgment on the primary claims. The court ordered the defendants to pay Visy Board's costs of the application for summary judgment.

Orders