| ‘IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
GENERAL LIST
S CI 2015 2907
| ANDREW REGINALD YEO (IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF HARRY SAMUEL GROLL) | First Plaintiff |
| GESS MICHAEL RAMBALDI (IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF HARRY SAMUEL GROLL) | Second Plaintiff |
| - and - | |
| DANNYSAM PTY LTD (and others according to the schedule attached) | Defendants |
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JUDGE: | JUDICIAL REGISTRAR MATTHEWS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 June 2017 |
DATE OF JUDGMENT: | 11 August 2017 |
CASE MAY BE CITED AS: | Yeo & Anor v Dannysam Pty Ltd & Ors |
MEDIUM NEUTRAL CITATION: | [2017] VSC 447 |
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PRACTICE AND PROCEDURE – Extending validity of writ – Relevant considerations – Howard v Power [2013] VSC 198 – Where proceeding commenced by trustees in bankruptcy – Where writ not served due to possibility of bankruptcy being annulled and request of bankrupt’s guardian and administrator for no further step to be taken in proceeding – Where good reason for extending the validity of the writ established – Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 5.12.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr A Silver | Frenkel Partners |
| For the First Defendant | No appearance | |
| For the Second, Third and Fourth Defendants | Mr D Snyder | Freed and Golding Lawyers |
JUDICIAL REGISTRAR MATTHEWS:
Introduction
The plaintiffs apply pursuant to r 5.12(2) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) to extend the validity of a writ filed on 5 June 2015 (‘Writ’). The application is supported by: affidavits sworn by Andrew Reginald Yeo on 26 May 2016 (‘First Yeo Affidavit’) and 23 May 2017 (‘Second Yeo Affidavit’); and by an affidavit of Amanda Jean Jowett sworn 29 June 2017 (‘Jowett Affidavit’).
The validity of the Writ was previously extended to 1 June 2017, by orders of Judicial Registrar Gourlay on 1 June 2016 (‘First Extension’). The First Yeo Affidavit was made in support of the application for the First Extension.
The plaintiffs made their current application prior to the expiry of the Writ, by way of a notice dated 24 May 2017 to the Prothonotary to produce the Court file. When this matter first came before me on 2 June 2017, I made orders adjourning the hearing of the application and requiring notice of the application to be provided to the defendants. When the matter returned for hearing on 30 June 2017, the second, third and fourth defendants were represented by counsel, and there was no appearance on behalf of the first defendant. The second, third and fourth defendants oppose the application.
For the reasons set out below, orders will be made extending the validity of the Writ to 11 February 2018, with liberty to apply.
Background
Mr Yeo, who is the first plaintiff, was appointed along with Gess Michael Rambaldi, the second plaintiff, as joint and several trustees of the bankrupt estate of Harry Samuel…
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- AGLC
- Yeo v Dannysam Pty Ltd [2017] VSC 447
- Case
- [2017] VSC 447
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the trustees could establish a good reason for extending the validity of the writ, given the circumstances of the case, including the potential annulment of the bankruptcy and the request of the bankrupt’s guardian and administrator. The court was required to balance the interests of the trustees in pursuing the claim against the potential implications for the bankrupt and the procedural fairness of the situation.
In reaching its decision, the court considered the principles established in Howard v Power [2013] VSC 198 and the relevant provisions of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), rule 5.12. The court concluded that the trustees had demonstrated a good reason for seeking an extension of the writ's validity. The potential annulment of the bankruptcy, coupled with the request of the bankrupt's guardian and administrator, provided sufficient grounds to warrant an extension. The court found that the trustees had acted reasonably in not proceeding with the writ until these matters were resolved. The court granted the extension, allowing the trustees to continue with the proceeding once the outstanding issues were addressed.
The court ordered that the validity of the writ be extended to allow the trustees to proceed with the claim against Dannysam Pty Ltd, subject to the conditions set out in the order. The extension was granted to ensure that the trustees could pursue the claim without undue delay, once the circumstances surrounding the bankruptcy had been clarified.
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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