Yildiz v Canipek

[2013] VCC 1857

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted

AT MELBOURNE

COMMERCIAL LIST

GENERAL CASES DIVISION

Case No. CI-04-02768

MOHAN YILDIZ	Plaintiff
v.
RASIT CANIPEK	Defendant

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	29 November 2013
DATE OF JUDGMENT:	29 November 2013 (revised that day)
CASE MAY BE CITED AS:	Yildiz v. Canipek
MEDIUM NEUTRAL CITATION:	[2013] VCC 1857

REASONS FOR JUDGMENT

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Catchwords:             Practice and procedure – Application to set aside judgment entered in default of appearance in 2004 – Applicant’s affidavit inconsistent with orders and reasons for decision in Family Court proceedings in 2005 - Application dismissed.       

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A. Sandbach	Lennon Mazzeo
For the Defendant	Mr D. Cash	Vernon de Gama & Associates

HIS HONOUR:

1The plaintiff is a solicitor; the defendant is a former client. On 17 August 2004, the plaintiff obtained a judgment against the defendant in default of appearance for the sum of $72,875.41, together with interest of $1,987.29 and costs.

2There are two applications before me today:

a.the plaintiff’s applications by summons dated 26 September 2013 for leave, pursuant to Rule 68.2, to proceed with execution more than six years after judgment was entered. The plaintiff wishes to issue a warrant for possession and to proceed with the sale of the defendant’s house at Coolaroo;

b.the defendant, by summons filed 22 November 2013, seeks to set aside the judgment.

3The defendant admits that he was served with the writ but says that he did not obtain legal advice at that time. After the judgment was entered, there were applications by the plaintiff to execute upon the judgment. The defendant says he was served with some court documents but not all the documents the plaintiff says were served upon him. He did attend Court on 6 October 2004 when a garnishee summons was heard but left the Court before the hearing of the summons saying that he believed the matter had been adjourned.

4The legal work performed by the plaintiff related to family law proceedings between the defendant and his former wife. Those matters proceeded before the Honourable Justice Morgan in the Family Court of Australia, from 6 to 9 June 2005. The defendant appeared in person and the plaintiff was, as fourth respondent in the matter, represented by counsel. At the conclusion of the hearing, Morgan J delivered an ex tempore judgment. During the course of that judgment she made comments about the credit of the defendant, including that he had informed her “at the commencement of the proceedings that he had appealed or was appealing decisions in the County Court in favour of his previous solicitor…and that he had documents to prove this”. Her Honour said “these documents had nothing to do with any such appeal”.

5At paragraphs 32 to 36 of the judgment, Her Honour dealt with the claim of the fourth respondent, the plaintiff in this proceeding. Her Honour referred to the judgment in the County Court on 17 August 2004 and concluded that she was satisfied “the solicitor is a secured creditor of the husband” and that he should be paid the amount of the judgment from the husband’s share of the property settlement that she was adjudicating upon. Justice Morgan annexed to the reasons for decision a calculation of the amounts owing pursuant to the judgment, including further interest. The formal orders made in the Family Court proceedings on 9 June 2005 made it clear that the monies owed by the defendant to plaintiff, pursuant to the judgment of the County Court in this proceeding, was to be paid by the defendant to the plaintiff.

6The defendant raises three matters by way of defence in the present proceeding:

a.he says that he was never served by the plaintiff with a bill of costs in taxable form;

b.he says that he paid $40,000 in cash to the plaintiff, $5,000 when he met the plaintiff for the first time and two further sums lent to him by friends, who both swore affidavits on 26 June 2005, that they had lent him money and had attended the offices of the plaintiff and handed the money to the plaintiff;

c.defendant’s counsel has indicated that there is a dispute as to the quantum of the costs.

7The plaintiff has annexed to an affidavit in response a bill of costs prepared by a costs consultant in taxable form and an affidavit by a process server indicating that the bill was served on the defendant personally on 9 May 2004. The plaintiff says that he did not receive any cash from the defendant or from friends of the defendant, and states further that he did not know of the existence of the two friends of the defendant “until the first day of the Family Court trial”.

8Although there appears to be differences between the matters deposed to on oath by the plaintiff and defendant in relation to these issues, I consider that I can give little weight to the statements made by the defendant in light of the orders made by Justice Morgan in the Family Law proceeding and the matters explained in her reasons for judgment. These clearly show that the defendant was, in June 2005, aware of the judgment in the County Court proceeding, the amount of the judgment and the additional interest that was claimed since the date of the judgment.

9These matters were not disputed in the Family Law proceeding and the judgment in this Court had not been challenged until the application issued recently by the defendant. It would also appear from material exhibited to the defendant’s affidavit in support of his application that, after the Family Court proceedings, he told medical practitioners and others about the possibility of a forced sale of the family home. These statements were made in relation to problems being experienced by one of the defendant’s children at that time.

10In my view, the defendant’s application should be dismissed for the following reasons:

a.the explanation for the defendant failing to file an appearance to the proceeding is simply that he failed to seek legal advice. It appears however, that he had access to lawyers as he was being legally represented in relation to the Family Court proceedings by other solicitors at that time;

b.the matters raised by way of defence to the proceeding do not withstand scrutiny in view of the later hearing in the Family Court proceedings and the orders and reasons for decision in that case;

c.no application was made until the recent summons by the plaintiff seeking to proceed with execution in relation to the judgment. The defendant was clearly aware of the judgment in this proceeding entered in 2004, the fact that execution had been attempted, that further orders had been made in the Family Court in June 2005 and that later there were pressures that the defendant and his family were under as a result of the possible forced sale of the home;

d.the plaintiff, in an affidavit responding to the defendant’s affidavit, has referred to the difficulties executing upon the judgment and the financial consequences which resulted, and an incident in which he describes being physically attacked by the defendant’s son after, he says, “the defendant cajoled and encouraged his son” to do so. In these circumstances, there is likely to be prejudice the plaintiff will suffer if the judgment were to be set aside which could not be adequately compensated by the payment of costs.

11I consider in the circumstances, as a result of the matters deposed to by the plaintiff as to the difficulties that have been encountered enforcing the judgment, that the relief sought by the plaintiff in his summons should be granted.

12The orders of Justice Morgan contemplated that the property at Coolaroo would be sold and the proceeds divided between the defendant and his former wife, with part of the defendant’s share to be paid to the plaintiff to meet the obligations of the defendant under the County Court judgment. The defendant remains living in the property at Coolaroo, his former wife having died in 2011.

13The orders I will make are as follows:

1.        The defendant’s summons filed 22 November 2013 is dismissed.

2.        Leave to the plaintiff to enforce the judgment entered 19 August 2004 by:

a.         the issue of a warrant for possession;

b.proceeding with the sale of the defendant’s estate and interest in all that piece of land located at 50 Almurta Avenue, Coolaroo, being land more particularly described in Certificate of Title Volume 9058 Folio 517, in accordance with the orders made by His Honour Judge Morrow on 24 August 2004.

3.The defendant must pay the plaintiff’s costs of the defendant’s summons filed 22 November 2013 and the plaintiff’s summons filed 26 September 2013, and the costs of the hearing today, fixed at the total sum of $5,000.

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Certificate

I certify that these 4 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 29 November 2013 and revised that day.

Dated: 29 November 2013

Catherine Kusiak 

Associate to His Honour Judge Anderson