Pamamull v Albrizzi

Pamamull v Albrizzi - [2011] VSCA 260 - VSCA 2011 case summary — Zoe

[65]

MR PAMAMULL: Maharaj, you are aware that we have been trying to get the files and what emails you got, what response you got? - - - Yes, I'm aware, Mr Pamamull.

HIS HONOUR: You are aware of what, Mr Maharaj? - - - That the solicitors, the law firm that has been acting for Mr Pamamull met with the principal of our firm and it was determined that they would still have carriage of the file of this particular matter and that we would provide advice on this matter upon receipt of the documents and the files from the solicitors who were acting for Mr Pamamull.

Mr Maharaj, I take it you are a solicitor, are you? - - - Yes, Your Honour.

What's the firm that you work with? - - - Ravi James Maharaj.

So you are principal of that firm? - - - I'm a director.

Are you the principal director of that firm? - - - No, I am not.

Have you been retained to act for Mr Pamamull today? - - - No, we have not been retained.

Have you been retained to act for Mr Pamamull for an adjournment application today? - - - No, we have not been retained as yet.

I see. What have you been retained, if anything, to do? - - - We have been retained by Mr Pamamull on three or four other matters which are not related to this matter.

So you have no retainer at all for the purposes of today? - - - We do not have any retainer for today's purposes.

Or for the proceeding that is the subject of today's proceeding? - - - That's right, Your Honour.

Yes. Are there any other questions you wish to ask Mr Pamamull?

MR PAMAMULL: Basically, emails - we are trying to get the files from him being exchanged by our company and until Friday he refused - he did not respond but late afternoon, he responded and you are aware of that truthness, the files were not given? - - - Yes, we are aware of it, that after we have been requested to provide advice on this matter, we have made numerous requests to Bruce McNab in particular to give us the files so that we could peruse the files and provide advice as to whether Mr Pamamull should consent to judgment, which is the advice which Bruce McNab had given to Mr Pamamull, but right up until Friday afternoon we had not received those files or any indication of what the matter was about. To go a bit further, we did make an attempt to actually get copies of the file from the court, I think it was in the chambers at the time. We contacted Bruce McNab, the solicitors, again. On Friday afternoon, I would say about 3 o'clock or 3.20, we received an email from Bruce McNab's firm, Aldgate firm, which basically said the files are ready for collection. We immediately responded saying that it was pretty late for anyone to actually take carriage number one; number two, we had not been instructed to actually act on the matter, we had only been instructed to see if we could provide advice on the matter.

And this is the proof that you've been not appointed until then and I was under the impression Bruce should be here today.

HIS HONOUR: Thank you. Do you want to ask any questions, Mr Osborne?

MR OSBORNE: No, Your Honour.

HIS HONOUR: Nothing else you want to ask?

MR PAMAMULL: Well, I suppose that's it.

[84]

I'm not prepared to give you an adjournment. I can't see any foundation for me to deny the plaintiffs their entitlement to present their case today. You are a defendant in this proceeding, you have been a defendant in this proceeding since August and you have had solicitors acting for you until this morning, and your affidavit gives me no basis whatsoever to put the plaintiff to the cost and inconvenience of an adjournment.

You've not, in your affidavit, said anything about having retained anybody to act on your behalf, despite the fact that you've had Mr Maharaj here earlier on this morning and have had the ability to do something. So that in the circumstances, I propose to reject your application for an adjournment and to hear the plaintiff's case.

MR PAMAMULL: We tried to get the files and we are not successful and we didn't - he has not informed me for defence in December. I was here in Melbourne until 24 December. He has not informed me, so where do I stand?

HIS HONOUR: Mr Pamamull, I hear - you tell me that you were here then and I can see that you don't have any papers on you.

MR PAMAMULL: I have evidence when I left.

HIS HONOUR: I don't doubt you left.

MR PAMAMULL: I left on 24 December.

HIS HONOUR: I don't doubt that.

MR PAMAMULL: I was in Melbourne.

HIS HONOUR: I don't doubt that you left on 24 December; you were in Australia until 24 December. I made orders some time ago that this matter was going to be heard today and you are not in the position to offer the plaintiff the costs of an adjournment, you've not offered to put any money into the court so that their wasted costs can be made good. You have still not appointed anybody to act for you now and I can see no reason at all not to allow the plaintiffs to prove their case today.

MR PAMAMULL: How can I appoint the solicitor when the documents are not released from Bruce?

HIS HONOUR: Mr Pamamull, you don't need to appoint somebody to act for you to have the documents - I will put that differently: you don't need the documents before you appoint somebody to act for you. You could easily have retained somebody to act for you in the proceeding without the documents.

[86]

HIS HONOUR: Mr Pamamull, I don't know what it will cost them, that's not a matter for me to say, but you are not today in a position, this minute, to give them the security.

MR PAMAMULL: If I knew the amount - - -

HIS HONOUR: Ask Mr Osborne.

MR PAMAMULL: How much is the amount?

MR OSBORNE: What amount?

MR PAMAMULL: For adjourning the case.

MR OSBORNE: My instructions are to proceed.

MR PAMAMULL: No, I just want to know the cost.

HIS HONOUR: The position, I suppose, Mr Osborne, is if I'm asked to adjourn and your client's economic position can be made good by an order for costs, I would need to take that into account, I think.

MR OSBORNE: Your Honour, I would say the costs of the day, which would be the costs we would be entitled to by reason of the adjournment, would be somewhere in the order of $8,000.

MR PAMAMULL: That's okay, I can pay. I'm willing to pay the $8,000.

HIS HONOUR: You can pay that what, in the next 15 minutes, can you?

MR PAMAMULL: No, within - - -

HIS HONOUR: You would need to put into the court almost immediately that amount of money before I could be satisfied that they are adequately secured.

MR PAMAMULL: Would you give me 48 hours?

HIS HONOUR: No, not 48 hours, Mr Pamamull.

MR PAMAMULL: 24 hours?

HIS HONOUR: No, Mr Pamamull. You need to do that now.

MR PAMAMULL: 24 hours.

HIS HONOUR: Mr Pamamull, you would need to do that now, not 24 hours. You would need to do it in the next half an hour.

MR PAMAMULL: One second, please.

HIS HONOUR: Yes, Mr Pamamull.

MR PAMAMULL: I can arrange but I need a few hours, maybe until 5 pm today.

HIS HONOUR: What are you proposing to do by 5 pm, Mr Pamamull?

MR PAMAMULL: Sorry?

HIS HONOUR: What are you proposing to do?

MR PAMAMULL: I just want to see if I've got some money in the account, then I will give them - because I can't get to the bank until I go to the bank. They won't - I don't do the telephone banking so I don't know. I have to go to the branch - - -

HIS HONOUR: Mr Pamamull, I don't want to deny you any opportunity that you have, but this exercise is largely a waste of time. The case of the plaintiffs is strong, the material that they have filed is very strong and I can't see the point of giving you the time that you are asking for.[5]

MR PAMAMULL: God knows. Who could win?

[92]

MR OSBORNE: I could probably say two short things. Your Honour, of course Mr Pamamull's just made some submissions from the Bar table. The matter that's raised in his defence and counterclaim is that the title boundaries didn't accord with the title details in respect of the western boundary and as such it was said that false information was supplied about those matters in the s 32 statement and in particular, that there was an easement which was not disclosed in the s 32.

The first stage in that, the building block of that argument is that there has to be evidence of an encroachment. There is no evidence and accordingly the claim should be dismissed. If one assumed in Mr Pamamull's favour that there was such evidence and if one assumed that it extended to 14 centimetres, which was the assertion that was made at the case conference, then we have a built property on the western boundary which has encroached into the title of the property that was sold by 14 centimetres. It is said that gives rise to an easement which was not disclosed in the s 32.

There is, however conclusive authority which I can hand up to Your Honour, which is to the effect that an exclusive use of a piece of land, which is that which would occur by way of a building at an adjacent level intruding into the subject title, is not relevantly an easement because an easement right can't be exclusive use. So if the evidentiary fact was able to be established, it wouldn't have the consequence of being an easement which had to be disclosed under s 32, it would be an encroachment and a discrepancy between the built form of the property and the title details, which in some circumstances, and absent acceptance of title, may, if it was material, give rise to rights on behalf of the purchaser but in this case didn't because firstly the purchaser had accepted title - that is another matter which is admitted but in any event, it doesn't give rise to any rights under s 32.

So there's no evidence and if there was, it wouldn't give him the relief that he seeks so the counter claim ought be dismissed. If your Honour pleases.

[94]

In this application the plaintiff seeks to recover damages from the defendant from a failure to complete a contract they entered into on 22 May 2008. The balance of the purchase price after payment of the contract [sic] was $2.52 million. It was not paid and a notice of rescission was served with effect from 14 April 2009.

A marketing campaign was subsequently undertaken for the sale by the vendor of the property which led to a second sale on 15 July 2009 and a shortfall from the sum originally agreed by the defendant to have been payable under the contract. The property was sold and settled on 15 September 2009 for a sum of $1.925 million.

The defendant was served, through the solicitors who have acted for him until this morning, with a notice to admit facts and authenticity of documents pursuant to Order 35 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) ("the Rules"). The defendant failed to serve a notice of dispute and therefore the facts and the authenticity of documents in the notice are deemed to be admitted pursuant to Rule 35.05. As a result, the existence of the contract is proven, as is its authenticity. Its terms are established and the plaintiff has the entitlement to bring its claim, as it has done.

The non-payment of the balance of the purchase price is also taken to be admitted, as are most of the integers making up the calculation of the loss claimed by the plaintiff.

In the circumstances I find that the plaintiff has established against the defendant a loss following a breach, the breach being the non-payment pursuant to the contract and the notice of rescission, the loss being $759,447.02. Interest has been calculated on that amount pursuant to statute of $46,919.16. I will order that the defendant pay the plaintiff the sum of $759,447.02, together with interest on that sum of $46,919.16.

So far as the defendant's counterclaim is concerned, there is no evidence before me of the encroachment which is asserted by Mr Pamamull. It is not sufficient to prove an encroachment simply to assert it. In any event, I accept that even if there had been proved to be an encroachment, it would not amount to an easement as alleged in the pleadings.

Accordingly, I will dismiss the counterclaim. I will defer the effect of these orders, however, until 2.30 pm on 24 March 2010.

[112]

... this is a defective title, this should never have proceeded. You told me Your Honour, that my allegations are against my instructing solicitors. My allegations are also against the plaintiff in that, there is no cause of action.

HIS HONOUR: Well, there is no evidence of the no cause of action. In this court your client through his previous solicitors had every opportunity to make the cause of action - - -

MR WIKRAMANAYAKE: Yes, Your Honour - - -

HIS HONOUR: - - - and failed.

MR WIKRAMANAYAKE: They didn't do it.

HIS HONOUR: Well, that might mean that your client has got very strong action against somebody else, not the plaintiff. Now, let me just tell you something else about why - even if there's a matter of discretion involved - about which I think there is not - but even if there were why I would not entertain your client's current application as a matter of discretion.

There was a lot of discussion on Monday about whether the plaintiff 's costs for an adjournment application could be secured, so that they were going to be rendered safe.

MR WIKRAMANAYAKE: I'm (indistinct) that, Your Honour.

HIS HONOUR: And there is no basis at all where their position is going to be made good in any way shape or form.

MR WIKRAMANAYAKE: I know, I understood that my client was asked to come up with some money, and he couldn't do it for the adjournment and he couldn't do it, I've been advised of that, but he's come up with the money to brief me now.

HIS HONOUR: But you see, the position - this is essentially a money claim as against the plaintiff, and therefore if I could have been confident on Monday that its claim for money might not have been obtained on Monday, but it might have been obtained in a month's time I would have said, "Well, it's just money", and what's more your client's financial position seems - on his former solicitor's evidence - so weak that the ability that they're going to get their money from your client seems relatively remote anyway.

So on one view what does it matter? The fact of the matter is, he wasn't able to make good on Monday, they're here today incurring more costs. The costs which on any view - on any conceivable view - have been thrown away - not their - for their fault - are not being made good.

MR WIKRAMANAYAKE: I don't for a moment cavil with that, Your Honour, I have got nothing to say about that - - -

HIS HONOUR: Well that was the last line of defence.

MR WIKRAMANAYAKE: I can't Your Honour - I am with all sincerity - I am flogging a dead horse ...

[155]

104 An extensive period of adjournment was not required, two weeks only being sought. Of course, in the nature of things a little more time might have turned out to be required, but it need not have been long. For the fact, kept silent during the hearing, was that a survey had been performed, thus establishing the physical facts. In the light of that, the matter of encroachment and its effect in law required a legal opinion, for the obtaining of which purpose the appellant was seeking the file from Aldgate Lawyers. As is apparent from the more comfortable distance that this Court now enjoys, it would have been simpler and fairer, in light of the pleadings - even allowing for the clearly erroneous plea of an easement - to allow a reasonable time for that opinion to be obtained. It may be that the appellant would be advised that good or reasonably arguable grounds of defence existed. And it may be that the expression of such grounds required the defence to be amended. Amendment of pleadings is a commonplace even in cases where parties appear by the most competent counsel. It is a commonplace for subsequent counsel to abandon the pleadings of their predecessor. The judge and the respondent's counsel knew that. It is also a commonplace, as we are indicating, that a fresh mind may see a point in law in a set of facts that a prior mind has not. Hence here, just because an ineffective pleading of easement was included within the overall pleading, did not mean necessarily that there was in fact no good or arguable point of defence. The judge and the respondent were dealing with a legally unskilled litigant in person who was seeking to make a point about the effect of an encroachment, and as to which the defence filed on his behalf had taken points including the contention of an easement. Another way of putting it might be open on consideration of the facts by a lawyer possessing appropriate skill. This was in its own way seen in the fact that before the judge on 25 March senior counsel then acting for the appellant informed the judge that while the claim of easement was untenable there yet was a defence to the proceeding based upon the boundary issue which constituted a defect in title which entitled the appellant to rescind.

[193]

138 We referred earlier to the appellant's pleaded case that the respondent had resold the property at an under value, proper steps in relation to the resale not having been taken, and of a breach of the duty of good faith. There was also the contention that in not giving the appellant further time the respondent had failed to mitigate its loss. We can say at once that the latter point has no substance, there being no reason to suppose, and none being suggested, that further time would have proved beneficial. As to the alleged sale being in breach of the duty of good faith and the price being less than ought to have been achieved, at no time either before the judge or in this Court has any material been put forward that might substantiate the allegation; and this in the context that, throughout, the respondent's contention has been that the defence lacked merit. It is important to remember that because this appeal was concerned with a decision whether to adjourn, and that the refusal was said to constitute a denial of natural justice, and the further hearing on 25 March having been for the purpose of vacating a judgment, it was important then, as it was on the appeal, for the appellant to put in materials that went to the substance of the matter. The substance of the matter was to be comprehended by evidence. Whether or not, as mentioned earlier, the hearing was understood by the appellant and his advisors to be in the nature of an application to vacate a judgment which one would ordinarily have to address on the merits, supported by affidavit establishing ground in that respect, the fact is that at the hearing on 25 March it was incumbent upon the appellant to address the merits; and that was done, but only to the extent exposed in the transcript of the hearing that day. The appellant did not seek to remedy its hand in that respect in this appeal. In the circumstances, we consider it reasonable to proceed on the basis that there is no evidentiary or other foundation for the pleaded allegation that the sale was at an under value in breach of the duty of good faith or that the respondent unreasonably failed to mitigate its loss. Accordingly, we would hold that the appellant has no arguable defence to the respondent's claim.

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Judgment (218 paragraphs)

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