Vorontsov v Fong - [2020] VSC 381

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S ECI 2019 05464

DMITRI MIKHAILOVICH VORONTSOV	First Plaintiff
NATALYA IVANOVNA VORONTSOVA	Second Plaintiff
v
LE ROY FONG AND OTHERS (according to the attached Schedule)	Defendants

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JUDICIAL OFFICER:	Matthews JR
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	26 June 2020
CASE MAY BE CITED AS:	Vorontsov & Anor v Fong & Ors
MEDIUM NEUTRAL CITATION:	[2020] VSC 381

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PRACTICE AND PROCEDURE – Judgment in default of defence – Application to set aside – Supreme Court (General Civil Procedure) Rules 2015, rr 21.02 and 21.07 – Lubura v Nezirevic (2013) 42 VR 43 and Kostokanellis v Allen [1974] VR 596 – Default judgment set aside

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JUDICIAL REGISTRAR:

Introduction

This is an application made by summons filed 27 May 2020 (‘Summons’) by the fourth defendant, O’Brien Real Estate (ABN 39 144 978 692) (‘OBRE’).[1] In the Summons, OBRE seeks orders that the default judgment entered on 20 May 2020 (‘Default Judgment’) by the first plaintiff, Dmitri Vorontsov, be set aside and that the statutory demand dated 25 May 2020 (‘Statutory Demand’) served on OBRE be set aside.
[1]This is how the fourth defendant is named in the writ.

By order made on the Court’s own motion and pursuant to r 84.04 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’), the Summons has been referred to me for hearing and determination.

On 5 June 2020, I made orders that the plaintiffs file and serve any affidavits in respect of the Summons by 12 June 2020; that OBRE file and serve any affidavits in reply and written submissions in respect of the Summons by 19 June 2020; that the plaintiffs file and serve any written submissions in respect of the Summons by 24 June 2020; and that the Summons be decided on the papers on or after 26 June 2020.

In support of the Summons, OBRE relies on two affidavits of its solicitor, Michael John Holmes, sworn 27 May 2020 and 19 June 2020. In his 27 May affidavit, Mr Holmes refers to his affidavit sworn 3 April 2020 in respect of another application in this proceeding. OBRE also filed written submissions on 19 June 2020.

In opposing the Summons, Mr Vorontsov relies on his affidavit dated 11 June 2020 and filed 12 June 2020. Mr Vorontsov did not file any written submissions. However, without leave or notice to the Court or OBRE and after receiving an email this morning from my Associate that this ruling would be delivered by email at 2.30pm this afternoon, Mr Vorontsov a further affidavit at 11.39am this morning. This was inappropriate. Clearly, OBRE has not had an opportunity to respond to this latest affidavit. However, I have read it and taken it into account and do not consider that OBRE is prejudiced by it, given what I have set out below.

I…

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 Vorontsov v Fong

Details

AGLC: Vorontsov v Fong [2020] VSC 381
Case: [2020] VSC 381
Decision Date: 26 June 2020

CaseChat Overview and Summary

Dmitri Mikhailovich Vorontsov and Natalia Ivanovna Vorontsova, the plaintiffs, filed a lawsuit against multiple defendants, including O'Brien Real Estate (OBRE), alleging breach of contract and seeking damages. The plaintiffs obtained a default judgment against OBRE, which then applied to have the judgment set aside. The court had to decide whether the default judgment should be set aside, and if so, whether OBRE should be allowed to file a defence. The court found that OBRE had a defence on the merits, that the delay in filing a defence was due to an administrative oversight, and that the application to set aside the judgment was made promptly. The court also found that OBRE's failure to file a defence did not prejudice the plaintiffs, and that a suitable award of costs and security would adequately compensate the plaintiffs. The court set aside the default judgment, allowed OBRE to file a defence, and dismissed the summons without ordering costs. The court also found that it could not make any orders in respect of the statutory demand as it was not able to be set aside in the existing proceeding in the Common Law Division.

Orders