Viva Energy Refining Pty Ltd v Sumervale Pty Ltd - [2022] VSC 773

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

PROPERTY LIST

S ECI 2022 01568

IN THE MATTER of an application under s 84(1)(c) of the Property Law Act 1958 (Vic) for the discharge, or in the alternative modification, of the covenants contained in Instruments of Transfer 1435176, 1503993, 1806300 and 1417550

BETWEEN:

VIVA ENERGY REFINING PTY LTD (ACN 004 303 842)	Plaintiff
v
SUMERVALE PTY LTD (ACN 161 202 697)	First Defendant
SUNYHILL PTY LTD (ACN 161 192 392)	Second Defendant

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JUDGE:	Matthews AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	6 December 2022
DATE OF RULING:	15 December 2022
CASE MAY BE CITED AS:	Viva Energy Refining Pty Ltd v Sumervale Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2022] VSC 773

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COURTS AND JUDGES – Recusal – Reasonable apprehension of bias – Application that trial judge recuse herself – Trial judge was instructing solicitor in previous litigation against a company in same corporate group as the defendants – Whether that gives rise to reasonable apprehension of bias – Application that trial judge recuse herself refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Townsend of counsel	Davis Advisory
For the Defendants	Mr S R Horgan KC with Ms L O’Rorke of counsel	Slocombe Brand Lawyers

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Evidence............................................................................................................................................... 3

The McLean Affidavit................................................................................................................... 3
The First Brand Affidavit............................................................................................................. 5
The Second Brand Affidavit........................................................................................................ 6
The First Gerhardy Affidavit....................................................................................................... 6
The Second Gerhardy Affidavit.................................................................................................. 8

Submissions........................................................................................................................................ 9

The Defendants’ submissions...................................................................................................... 9
Plaintiff’s submissions................................................................................................................ 15
Defendants’ submissions in reply............................................................................................. 20

Consideration.................................................................................................................................... 23

The Impugned Assertions.......................................................................................................... 24
The required logical connection................................................................................................ 25

Conclusion......................................................................................................................................... 31

HER HONOUR:

Introduction

This proceeding concerns an application by Viva Energy Refining Pty Ltd (‘Plaintiff’) for the discharge or modification of four restrictive covenants burdening part of the land known as 90 Refinery Road, Corio, Victoria, more particularly described in certificate of title volume 8866 folio 943 (‘Land’).[1] The Plaintiff is the registered proprietor of the Land.
[1]The covenants are those contained in Instruments of Transfer 1435176, 1503993, 1806300 and 1417550 (‘Covenants’).

In accordance with the usual procedure for dealing with such applications, at the first return of the proceeding on 16 June 2022 the Court made orders that the registered proprietors of land with the benefit of the Covenants be given notice of the application. At the second return of the proceeding on 11 August 2022, two of the beneficiaries of the Covenants, Sumervale Pty Ltd and Sunyhill Pty Ltd (together, the ‘Defendants’), having notified the Plaintiff’s solicitor of their objection to the relief sought in the proceeding, were represented by counsel and were joined to the proceeding as the First and Second Defendants respectively. Orders were made on that day for the parties to attend a mediation on or before 3 October 2022.

At the third return of the proceeding on 20 October 2022, the Court fixed the proceeding for trial on an estimate of three days commencing 31…

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: [2022] VSC 773
Decision Date: 15 December 2022

CaseChat Overview and Summary

Viva Energy Refining Pty Ltd sought a declaration that Sumervale Pty Ltd had breached a franchise agreement by failing to comply with certain obligations. The case was heard in the Federal Court of Australia. The central issue before the court was whether the trial judge should recuse herself due to a reasonable apprehension of bias. The basis for this application was the judge's previous role in instructing the solicitor for Sumervale in another case against a company within the same corporate group as the defendants.

The court examined whether the prior involvement of the trial judge in a related matter could give rise to a reasonable apprehension of bias. The judge considered the nature and extent of her involvement in the previous litigation, the timing of the events, and the relationship between the parties in both cases. The court found that the judge's previous role did not establish a reasonable apprehension of bias, as there was no evidence to suggest that the judge had formed an opinion on the merits of the case or would be unable to approach the current matter impartially. Consequently, the application to recuse the trial judge was dismissed.

The court's reasoning and decision were grounded in the principles of judicial impartiality and the need to maintain public confidence in the justice system. The judge's past involvement, while significant, did not meet the threshold required to establish bias. The case proceeded with the original trial judge, who was deemed to be impartial and capable of fairly adjudicating the matter.

The court did not make any orders regarding the merits of the underlying dispute between Viva Energy Refining and Sumervale. The refusal of the recusal application was the sole outcome of the proceedings concerning the judge's impartiality.

Orders