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[2005] VSC 380
Supreme Court of Victoria
2005-07-01
CUMMINS J
Original judgment source is linked above.
PRACTICE COURT - Appeal from Order by V.C.A.T. as to joinder of parties - Test applicable - Appeal dismissed.
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1 This is an appeal by the plaintiff, Mr John Zervos, from an Order of Master Evans made on 9 June 2005 refusing the plaintiff leave to appeal from a VCAT Order and to which I shall come.
2 The initiating proceeding is an originating motion filed 18 May 2005 on behalf of the plaintiff seeking pursuant to s.148 Victorian Civil and Administrative Tribunal Act 1998 leave to appeal from the Orders of VCAT made in the relevant proceeding on 26 April 2005 constituted by Senior Member Davis, and an order setting aside those Orders. By summons on originating motion the same day, like relief was sought. From those Orders the plaintiff now appeals.
3 In support of the appeal and, indeed, the application below, there are affidavits of Mr A.J. Zucco, solicitor for the plaintiff, of 18 May 2005, 25 May, 7 June and 8 June 2005, and numerous exhibits thereto which have been provided to this Court. By AJZ14, an exhibit to the second of those affidavits, the reasons for the decision of Senior Member Davis of 26 April 2005 are set out.
4 The application, as I say, was pursuant to s.148. On behalf of the appellant, the plaintiff, it is submitted by Mr Herskope in a comprehensive and helpful argument that the proceeding comes before this Court by s.148(1)(b) and s.60 of the VCAT Act as a question of law. Section 60 of the VCAT Act makes relevant provision as to joinder of parties. Mr Herskope traced the history of the matter through the exhibits to the affidavits. A series of security documents was entered into on 2 March 2001, exhibited to the affidavit of Mr John Zervos forming a part of exhibit to Mr Zucco's 8 June affidavit. In particular, Mr Herskope focused upon the schedule to the deed of loan and to clause 12.8 therein. By deed of loan made 13 December 2002, the second deed of loan, the defendant agreed to advance $5,200,000 to Indevelco Pty Ltd pursuant to the terms of that loan. That did not proceed and was used for the construction of apartments for Indevelco by Arrow International, the applicant to the VCAT proceeding, being the builder of the apartments.
5 Mr Herskope said that save for the tripartite deed no other collateral documents were entered into and the second deed of loan contained the central provision, identical to clause 12.8. In January 2004 Indevelco refinanced the project with another financier and repaid the defendant's loan in full, Mr Herskope saying that Indevelco was then discharged of its obligations. Subsequently, Arrow claimed in the VCAT proceeding against Indevelco as developer and the defendant as financier for moneys owing under the building contract and/or a tripartite deed, which was denied by the defendants. Perpetual applied to join Zervos pursuant to the guarantee. The Order for leave was made with respect to the document exhibited as AJPB1 to the affidavit of Mr Balchin which forms part of exhibit AJZ9; and, as I have said, on 26 April 2005 Senior Member Davis ordered the joinder. The reasons were published as pp.70-73 of the material that I have referred to.
6 Mr Herskope has submitted that in Boral Resources Pty Ltd v Robek Engineering Construction Pty Ltd[1], the Court of Appeal stated the principle in relation to joinder under Rule 9, that the defendant needs to demonstrate on proper material that there is a viable cause of action in it against the plaintiff. In that respect Mr Herskope relied upon Wimmera-Mallee Rural Water Authority v F.C.H. Consulting Pty Ltd[2]. Mr Herskope submitted because the joint application was not a pleading application but an application to join a party, proper material needed to be adduced to satisfy the Tribunal of the relevant matters set forth by Byrne J in Wimmera-Mallee Rural Water Authority. Mr Herskope further submitted as a matter of law the Tribunal laid too low a formulation of the test. The true test was that claim was arguable, but the test applied by the Tribunal was that of possibility. Mr Herskope further submitted that there was vagueness in the Order below and reasons in that the member found that "At some stage the parties did intend to enter a guarantee". Mr Herskope said that that does not give rise to any obligation and was conspicuously vague. He further submitted that not only was there no evidence supporting the proposed claim, but the decision was unreasonable in the context of the principle in Wednesbury Corporation; and, further, that the Tribunal took into account an irrelevant consideration, namely that there were many interlocutory proceedings when there were not. Finally, Mr Herskope submitted that there would be substantial injustice were the Orders to stand because of the very significant costs as well as personal stress which would be imposed upon Mr Zervos by the joinder.
7 Mr Frenkel on behalf of the respondent defendant relied upon Secretary to Department of Premier and Cabinet v Hulls[3] where the Court laid down the well known principle as to what is and is not a question of law. In Bulasa Pty Ltd v Baytown Properties Pty Ltd[4], Gillard J at paragraphs 40 to 41 said a question of law is not something which is simply a matter of weight or sufficiency of evidence. Eames J in Eiken v Housing Guarantee Fund Ltd[5] again stated the principle that the circumstance that a different conclusion might have been reached by a Court to VCAT is not of itself a question of law or reason to disturb the Order below.
8 Mr Frenkel, and I agree with him in this respect, relied upon the breadth and plenary character of s.60(1) of the VCAT Act including that the Tribunal may order a person be joined in the three sub-paragraph considerations there set out. Mr Frenkel relied upon Byrne J's formulation in the Independent Cement And Lime Pty Ltd v VCAT[6], emphasising that breadth. Plainly, of course, as Mr Frenkel rightly conceded, a joinder should not be ordered if the proposed claim is misconceived or deemed to fail; and he relied upon authority for that, although authority is not needed.
9 However, Mr Frenkel said that under the plenary power and considerations applicable under s.61 of the VCAT Act, the basis for the order for permitting Perpetual to claim contribution or indemnity against Indevelco and third party relief against Zervos was Perpetual's amended points of claim, exhibit AJPB1 to the affidavit of Mr Balchin. Perpetual's claim for contribution and indemnity against Indevelco is made under various clauses which Mr Frenkel specified; and relevantly Perpetual's claim for joinder and third party relief against Mr Zervos is based upon clause 3(b) of the Guarantee and Indemnity, exhibit J25, clause 3(c) of the Guarantee and Clause 10.1 of the guarantee. Mr Frenkel submitted that the submission on behalf of Mr Zervos that Perpetual had released Indevelco and Zervos from their obligations was erroneous; and that prior to the refinance Perpetual had made it quite clear that notwithstanding the refinance Indevelco and Zervos were only to be released from the securities they had given, not from their personal covenants evident from AJPB1 and AJPB2. In any event, so he submitted, both the Fixed Charge and the Guarantee provide that the covenants effectively conferred therein were continuing and not affected by events such as the discharge of the securities. To that end Mr Frenkel relied upon the Fixed Charge clauses 10.12, 10.20 and 10.22 and the Guarantee clauses 6.1, 7.2, 9.2, 10.13 and 10.14. Mr Frenkel submitted that those provisions defeated the contentions on behalf of Mr Zervos.
10 In relation to collateral securities it was argued before the Tribunal that the relevant moneys were loaned by Perpetual to Indevelco pursuant to the Further Loan Agreement, not the Loan Agreement. Counsel for Mr Zervos relied below upon the material there set forth. Mr Frenkel said that there are a number of answers to that submission. First, the Tripartite Deed was executed on the same day as the Further Loan Agreement, 13 December 2002. The commencement date of the Further Loan Agreement was 2 March 2001 which was the day the Guarantee was executed, and the mortgage was registered on 16 March 2001. Second, Perpetual alleges that the money was leant to it by Indevelco pursuant to the Loan Agreement and the Further Loan Agreement; and Mr Frenkel submitted, and I consider rightly, whether the money was lent pursuant to the Loan Agreement or the Further Loan Agreement, or both, is a matter for trial. Third, Mr Frenkel submitted that the collateral security is expressly made collateral to the Further Loan Agreement, Schedule Item 10 and clause 12.18, and the fact that they were collateral to the Loan Agreement, Schedule Item 10, if they were, is not to the point. Fourth, he submitted that the fact that the Further Loan Agreement was executed after some of the collateral securities were executed does not have the effect that the collateral securities are unenforceable. Perpetual's case is that the collateral securities related to the transaction the subject of the VCAT proceeding.
11 I do not need to consider the question of estoppel which has been raised, because of the conclusion I reach on the substantive point. I agree with Mr Frenkel that this is a case where the claim on behalf of the defendant to join is open and arguable. Whether it is sustained in the end is a matter for trial. The application for joinder is not an application for summary judgment and whilst I agree with Mr Herskope that the test is higher than that apposite to a mere pleading matter because it involves joinder of a party, on the other hand Mr Frenkel is entirely right that the bar is set lower than on an application for summary judgment.
12 Objection was taken by Mr Frenkel to the further affidavit of Mr Zucco in relation to the costs which would be a burden upon Mr Zervos. I would have thought that the affidavit does not say anything that would not be self-evident in any event; and the objection does not stand in the way of an understanding of the burden of costs which would obviously follow if Mr Zervos should not have been joined.
13 The fundamental question is whether there was sufficient before the Member and the Master and this Court supporting the joinder, and for the reasons I have stated I consider there was sufficient.
14 The question of jurisdiction was not raised below, but even if one considered it, it is plain, as Nettle J stated and Moorabool SC v Taitapanui[7], that the power of joinder under s.60 of the VCAT Act is, at least, as broad as the power in this Court under Rule 9.06.
15 Further, I consider that to refuse the joinder would have most undesirable consequences of duplication and expense, the very reason for the provision in the first place.
16 For those reasons, I am satisfied that the Order below was justified. I am not satisfied that it ought to be disturbed on appeal and I dismiss the appeal.
[3] [1999] VSCA 117; (1999) 3 VR 331, particularly at 335.
[5] [2001] VSC 23; (2001) 17 VAR 324.
[6] [2000] VSC 355; (2000) 16 VAR 290 at 293.
# Zervos
Perpetual Nominees Limited \[2005\] VSC 380
(1999) 3 VR 331