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Yeo v Dannysam Pty Ltd

Yeo v Dannysam Pty Ltd

Case [2017] VSC 447 11 August 2017

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‘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…

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 Yeo v Dannysam Pty Ltd

Details

AGLC: Yeo v Dannysam Pty Ltd [2017] VSC 447
Case: [2017] VSC 447
Decision Date: 11 August 2017

CaseChat Overview and Summary

The case of Yeo v Dannysam Pty Ltd involved the trustees in bankruptcy seeking to extend the validity of a writ against the defendant. The dispute arose in the context of proceedings initiated by the trustees in bankruptcy, where the writ had not been served due to the possibility that the bankruptcy could be annulled and the request of the bankrupt's guardian and administrator for no further steps to be taken in the proceeding. The Supreme Court of Victoria was called upon to determine whether there were sufficient grounds to extend the validity of the writ under the Supreme Court (General Civil Procedure) Rules 2015 (Vic), rule 5.12.

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