Yuille v Husek
[2024] VSC 278
•29 May 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST
S ECI 2023 05062
BETWEEN:
| KY WILLIAM CROSS YUILLE | Plaintiff |
| v | |
| ROSS HUSEK & ORS (according to the attached Schedule) | Defendants |
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JUDGE: | Irving AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 May 2024 |
DATE OF JUDGMENT: | 29 May 2024 |
CASE MAY BE CITED AS: | Yuille v Husek |
MEDIUM NEUTRAL CITATION: | [2024] VSC 278 |
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PRACTICE AND PROCEDURE — Section 63 of the Civil Procedure Act 2010 (Vic) — Rule 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 — Summary judgment — Principles to be applied in an application for summary judgment — Application must have a ‘real’ chance of success — Plaintiff does not represent the deceased’s estate and has no standing to bring claim — Plaintiff has no real chance of success — Summary judgment granted to defendants.
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APPEARANCES: | Counsel | Solicitors |
| The Plaintiff in person | ||
| For the Defendants | Mr D Carlile of counsel | Moray & Agnew |
TABLE OF CONTENTS
Plaintiff’s originating motion...................................................................................................... 1
Background facts........................................................................................................................... 2
Relevant principles....................................................................................................................... 4
Defendants’ submissions............................................................................................................. 5
Plaintiff’s submissions.................................................................................................................. 7
Consideration................................................................................................................................ 7
Conclusion...................................................................................................................................... 8
HIS HONOUR:
The plaintiff has commenced this proceeding alleging that his former de facto partner, Patricia Husek (deceased) was forced or bullied into transferring her property at 1a Carpenter Street Brighton (Property) to her five children. He seeks an order, under s 82 of the Transfer of Land Act 1958 (Vic) (TLA) and the Family Law Act 1975 (Cth) (FLA), that he be paid an amount equal to a one sixth share of the Property.
The defendants are Ms Husek’s five children. They have filed a summons seeking summary judgment pursuant to ss 62 and 63 of the Civil Procedure Act 2010 (Vic) (CPA) or, alternatively r 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Rules).
The defendants rely on:
(a) The affidavit of Melissa Passarelli sworn 22 December 2023;
(b) The second affidavit of Melissa Passarelli sworn 6 March 2024;
(c) Written submissions filed 6 March 2024; and
(d) Further written submissions filed 28 March 2024.
The plaintiff opposes the defendant’s summary judgment application. He has filed a number of affidavits in the proceeding:
(a) Affidavit of Ky Yuille sworn 30 October 2023;
(b) Affidavit of Ky Yuille sworn 21 November 2023;
(c) Affidavit of Ky Yuille filed 4 March 2024; and
(d) Affidavit of Ky Yuille affirmed 18 March 2024.
Plaintiff’s originating motion
The plaintiff is a self-represented litigant. His Originating Motion pleads:
1/Mrs PATRICA (sic) HUSEK (1934~2022} partner 16 years - 2006 till 2022
1a Carpenter St Brighton Victoria 3186. PATRICA (sic) HUSEK owned the property over 30 years.
Certificate of title VOLUME 09966 FOLIO 925 Security no: 124103156593W
Electronic Instrument of Transfer Statement 22/02/2023 approved by Department of Environment, Land, Water and Planning Land Title Reference 9966/925
2/19 June 2020 PATRICA (sic) HUSEK signed an Instrument of Transfer of her property to her 5 children. The Instrument of Transfer was secretly carried out to stop me finding out. In fact PATRICIA HUSEK was with me 14 days in Daylesford. June 1 to 10 and 14 to 20th.
“They found another way”. However, unlike all previous visits to the Family Lawyer in our long 16 years relationship, Patricia Husek was made to secretly sign the Instrument of Transfer to her children. When opportunities arose to discuss the Instrument of Transfer and the lawyer visit, was not discussed. Patricia Husek was forced, bullied not able to tell me. If I was told, we would not have unfettered access as previously over the 16 years “Special” relationship.
3/Youngest son ROSS HUSEK used FINANCIAL COERCIVE CONTROL to force his mother PATRICA (sic) HUSEK to sign the Instrument of Transfer 20 June 2020, to her 5 children namely TRICIA MAREE ALLEN, ROSS ANDREW HUSEK, MICHELLE ANN HAYAT, GARY PETER HUSEK and PETER JOHN HUSEK. A combination of undue influence, coercion, and duress ~ bullied.. With this knowledge the other four children were complicit In illegally forcing their Mother PATRICA (sic) HUSEK into giving the property to them to deceitfully avoid the defacto relationship with me.
The plaintiff’s prayer for relief is as follows:
Under Section 82 Transfer of Land Act 1958, I am seeking an amount equal to a one sixth share of the property. PATRICA (sic) HUSEK was forced into signing something that she would not normally agree to. I categorically believe that PATRICA (sic) was “bullied” on the day whilst very unwell, into agreeing to the transfer of her Property. Mrs PATRICA (sic) HUSEK (1934 ~ 2022} and I were in a continuous defacto relationship for 16 years – 2006 till 2022. Therefore under Family Law Act 1975 I claim an equitable interest in 1 a Carpenter Street Brighton Victoria 3186 because the transfer of land was undertaken without undue consideration of me being in a defector relationship with their mother PATRICIA HUSEK for 16 years.
Background facts
The following background provides context to the plaintiff’s pleaded case and is drawn from the defendants’ written submissions which summarise the evidence of Melissa Passarelli.
On 4 October 1990, Patricia Husek (Patricia) and her husband, Josef Husek (Josef) became the joint registered proprietors of the Property.
On 22 February 1992, Josef passed away.
On 1 June 1992, Patricia became the sole registered proprietor of the Property by way of survivorship.
In 2006, the plaintiff commenced a relationship with Patricia, however, they did not live together, nor did they live at the Property.
At all times the first defendant Ross Husek lived at the Property and was Patricia’s sole caregiver in the later years.
In 2017, Patricia executed a will bequeathing her entire residuary estate to the defendants as tenants in common in equal shares. No provision was made for the plaintiff as Patricia stated in her will that she had already given him monies.
On 3 June 2020, Patricia and the defendants entered into a Deed for Familial Assistance and Care (Deed) under which Patricia was to transfer the Property to the defendants, and in return, they were obliged to ensure, to the fullest extent reasonably possible, that Patricia received every assistance and care reasonably required by her on an as-needed basis. The Deed records that Patricia received independent legal advice prior to the execution of the Deed.
On 19 June 2020, pursuant to the Deed, the Property was transferred from Patricia to the defendants.
On 11 November 2022, Patricia passed away.
On 9 February 2023, the defendants, Gary Peter Husek, Peter John Husek, and Ross Husek, applied for a grant of probate regarding Patricia’s estate. The estate had net assets of $32,907.95.
The time for the commencement of a proceeding pursuant to Part IV of the Administration and Probate Act 1958 (Vic) expired on 9 August 2023.
On 15 August 2023, the Plaintiff commenced this proceeding.
The Property has been sold and settlement occurred on 29 February 2024.
Relevant principles
Section 62 of the CPA provides that a defendant in a civil proceeding may apply to the Court for summary judgment on the ground that the plaintiff’s claim or part of that claim has no real prospect of success.
Section 63 of the CPA empowers the Court, subject to s 64, to give summary judgment if satisfied that a claim has no real prospect of success.
Section 64 of the CPA provides that the Court may order a civil proceeding to proceed to trial if the Court is satisfied that, despite there being no real prospect of success the proceeding should not be dismissed because:
(a) it is not in the interests of justice to do so; or
(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.
An application for summary judgment under s 62 of the CPA must be made in accordance with Part 3 of Order 22 of the Rules.
The principles relevant to an application for summary judgment were set out by the majority of the Court of Appeal in Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27.
There the majority said:
(a) the test under s 63 of the CPA should be construed as one of whether the respondent to the application for summary judgment has a “real” as opposed to a “fanciful” chance of success;
(b) the test is to be applied by reference to its own language and without paraphrase or comparison with the “hopeless” or “bound to fail” test essayed in General Steel;[1]
(c) it should be understood, however, that the test is to some degree a more liberal test than the “hopeless” or “bound to fail” test essayed in General Steel and, therefore, permits of the possibility that there may be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success; and
(d) at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by an amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.
[1]General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.
Defendants’ submissions
In summary the defendants submitted the plaintiff’s claim:
(a) is misconceived;
(b) the indorsement does not disclose a cause of action;
(c) there are no material facts in the plaintiff’s affidavit material that could support any claim; and
(d) no amendment to the claim could cure the defects.
The defendants submitted that s 82 of the TLA has no application to any matters raised by the plaintiff’s Originating Motion.
The terms of s 82 of the TLA is as follows:
82. Application of moneys obtained from actions by the mortgagor
(1)Any sum of money which becomes payable to the mortgagor under any judgment decree or order in any action by him for or on account of any waste or damage of or to the land mortgaged shall be paid to the first mortgagee in reduction or satisfaction of the money secured; and if he is not willing to receive it or thereby is fully paid off, such sum or the balance shall be paid to any subsequent mortgagee according to priority in like reduction or satisfaction; and if no mortgagee is willing or entitled to receive it, then to the mortgagor for his own benefit.
(2)Any mortgagee may, either before or after judgment or execution obtained in any action brought by the mortgagor, apply to the court for a summons in such action calling on the plaintiff and defendant or their legal practitioners, conveyancers or agents to attend before the court and show cause why any sum beyond $50 which has been or is recovered for damages in such action or which becomes payable on the settlement thereof should not be paid to such persons and for such purposes as are hereinbefore mentioned with respect to money payable under any judgment decree or order in any action by the mortgagor; and the court shall determine the matter in a summary manner and make such order therein as to costs and all other matters as appears to be just and reasonable.
The defendants submitted that to the extent the plaintiff’s application is brought under the FLA, this Court has no jurisdiction to hear or determine that application because it is not a Court that is conferred with jurisdiction by s 39B of the FLA. Additionally the defendants submitted that the plaintiff cannot bring proceedings under the FLA after the death of the spouse.[2]
[2]The Marriage of Sims (1981) 7 Fam LR 667, 674.
In relation to the plaintiff’s allegation that the transfer of the deceased’s real property was the result of undue influence on the part of the defendants, the defendants submitted that the plaintiff does not have any interest in the Property, is not the deceased’s legal representative, and thus he has no standing to bring or prosecute that claim on behalf of the deceased.
Finally, the defendants submit that these flaws in the plaintiff’s claim cannot be cured by amendment.
Plaintiff’s submissions
In response to the Court’s questions about the plaintiff’s standing to bring his undue influence claim, the plaintiff submitted that he was the deceased’s long term de facto partner. The plaintiff did note explain how he said that status gave him the necessary standing. He did not make any submissions challenging the defendants’ statement that the plaintiff had no interest in the Property and is not the legal representative of the deceased’s estate.
Consideration
There is no evidence before the Court that the plaintiff is a mortgagor of the relevant property. I accept the defendants’ submission that s 82 of the TLA, which deals with the application of money obtained from legal actions brought by a mortgagor, has no application to any matters raised by the plaintiff’s Originating Motion.
Similarly, it is clear from the terms of s 39B of the FLA that this Court has no jurisdiction to hear and determine an application brought pursuant to the FLA. Additionally, I note that the plaintiff’s Originating Motion does not specify any particular provision of the FLA he relies upon to support his asserted ‘equitable interest’ in the Property. Nor has he identified in his pleading or affidavit material any other clearly identifiable basis for that asserted interest.
Other than a bald assertion that he was the de facto partner of the deceased, the plaintiff has not otherwise identified any basis for his asserted interest in the Property such as would found his standing to bring an undue influence claim. Nor has the plaintiff explained how, if the Court accepted his de facto partnership status, that would give him an interest in the Property, of which the deceased was the sole registered proprietor. He does not assert that he lived in the Property. He does not assert any interest in the Property by virtue of the terms of the deceased’s Will. He does not assert that he represents the deceased’s estate.
In these circumstances I am satisfied that the plaintiff’s proceeding has no real prospect of success.
I accept the submission of the defendant that usually, given the plaintiff was representing himself and is not a lawyer, the Court might consider striking out his pleading and providing him with an opportunity to replead. Even making allowance for the plaintiff’s self-represented litigant status, the plaintiff was unable to articulate any possible claim or amendment to the current claim that he would have standing to bring. His categorical belief that the deceased was bullied into agreeing to transfer the property to her children, does not, without more, give him the standing to bring a proceeding based on that belief.
In my view, this is not a case in which the Court should strike out the pleading and allow the plaintiff an opportunity to replead. Nor is it a case which, despite having no real prospect of success, should be allowed to proceed to a full hearing. Accordingly, I will order summary judgment for the defendants.
Conclusion
For the reasons given above, I will grant the defendants’ application for summary judgment.
I request the parties confer on the question of costs. If the parties are unable to agree, within seven days of the date of this judgment, on the terms of any orders for costs, the proceeding will be relisted for oral submissions on costs.
SCHEDULE OF PARTIES
| S ECI 2023 05062 | |
| BETWEEN: | |
| KY WILLIAM CROSS YUILLE | Plaintiff |
| - v - | |
| ROSS HUSEK | First Defendant |
| PETER JOHN HUSEK | Second Defendant |
| TRICIA MAREE ALLEN | Third Defendant |
| GARY PETER HUSEK | Fourth Defendant |
| MICHELLE ANN HAYAT | Fifth Defendant |
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