Plaintiffs v Defendant

Supreme Court of Victoria|2005-04-14|Before: HABERSBERGER, J

PRACTICE AND PROCEDURE - Application to set aside judgment for possession of property obtained in absence of the defendant - Relevant principles - Application to extend time within which to apply to set aside judgment - Relevant principles - Held inevitable that even on the best outcome the defendant would have to sell the property - Defendant accordingly confined to claim for damages - Rules 3.02 and 49.02 of the Supreme Court Rules.

1 This is an application by the defendant, Brigitte Cirss, by a summons filed on 24 February 2005 for:

(a) an extension of time pursuant to r.3.02 of the Supreme Court (General Civil Procedure) Rules 1996 ("the Supreme Court Rules") within which to apply to set aside the judgment of the Court entered on 14 December 2004; and

(b) if granted, an order pursuant to r.49.02(2) of the Supreme Court Rules setting aside that judgment on the ground that the defendant was not present before the Court at the hearing of the matter.

2 The proceeding itself was commenced on 13 October 2004 by an originating motion under O.53 of the Supreme Court Rules seeking the recovery of the land at 20 Westgarth Street, Northcote in the State of Victoria ("the property"). The originating motion, which was returnable on 25 November 2004, was supported by an affidavit sworn on 12 October 2004 by Salvatore Michael Cusmano, a director of the first plaintiff, Vimplane Pty Ltd. On 25 November 2004 the defendant personally filed an appearance. On the same day Master Wheeler, at the request of the defendant, adjourned the hearing to 14 December 2004. The Master directed that any affidavit on behalf of the defendant be filed and served by 10 December 2004. On 14 December 2004 in circumstances which will be examined below Master Wheeler referred the proceeding forthwith to the Judge sitting in the Practice Court. There was no appearance by the defendant before Hansen J, who ordered that the plaintiffs recover possession of the property and that there be a stay on execution for possession for 45 days. A warrant for possession of the property was issued at the request of the plaintiffs on 15 February 2005.

3 In her affidavit in support of her application sworn on 24 February 2005, the defendant deposed that she was a trained nurse with clinical qualifications in General Nursing and Psychiatric Nursing. In addition, she had obtained advanced qualifications in Nursing Management Practice and a Master of Business Administration. She had worked as a Director of Nursing in Australia and overseas.

4 In 1993 the defendant purchased the property, on which there was a 19th century weatherboard Victorian house, for $197,500, with the assistance of a loan from the St George Bank Limited ("the Bank"). She said that she had spent $48,500 on renovations.

5 On 11 July 1999, the defendant said, she had injured her back lifting a struggling, elderly male patient. She suffered pain and difficulty in sitting, standing, getting out of bed and walking. The results of X-rays and a CT scan revealed degeneration of the defendant's lumbar spinal vertebrae, with lipping of the vertebrae, and bulging of intervertebral discs. She was unable to work. The defendant said that she found herself becoming depressed by her continuing pain, immobility and lost earning capacity. She said that she went from being organised and efficient in the management of her working life and financial affairs to "becoming disorganised and inefficient". She was originally prescribed Zoloft for her depression and "more recently" Efexor.

6 As a result of her considerably reduced earnings, the defendant fell behind in her mortgage repayments on the property. She sold two investment properties but was still unable to pay her debts. The Bank obtained a warrant of possession in December 1999. According to the defendant, in 2000 she refinanced her loan with the Bank and took out a second mortgage. For the purposes of the refinancing, the Bank had the property valued. The defendant said that it was valued at $425,000. In his affidavit in opposition to the application sworn on 3 March 2005, Mr Cusmano produced a title search which disclosed that only one mortgage was registered on the Certificate of Title. This cast some doubt on the existence of a valuation of the property at $425,000. Certainly, no second mortgage to the Bank or that valuation was produced. Whatever the situation reached with the Bank, the Sheriff continued to make demands on the defendant for possession of the property through July, August and September 2000. Some respite then seems to have followed the defendant obtaining an early release of some of her superannuation.

7 The defendant said that she realised that she needed to do something to remedy her financial situation. One idea she considered was to renovate the house and convert part of it into an art gallery. She thought that this would give her an income stream which would help her service her loans and stave off eviction. In September or October 2000 Ms Cirss was introduced to Mr Cusmano. She asked him whether he would be interested in helping her with finance to establish the art gallery. She said that at this time she told Mr Cusmano about her accident, her ongoing medical conditions and her financial difficulties, including the warrant of possession and the notice from the Sheriff. She handed to Mr Cusmano many papers and correspondence concerning her financial situation. Mr Cusmano did not make any offer to assist the defendant.

8 In his affidavit in opposition sworn on 3 March 2005, Mr Cusmano denied much of this evidence. He said that the defendant approached him to inquire whether he would be interested in purchasing half the property to finance opening a nursery. He denied being told about the defendant having any serious medical condition or that warrants for possession had been issued. Nor did he receive any papers or correspondence from the defendant.

9 In February 2001 the defendant again received demands for possession from the Sheriff on behalf of the Bank. She said that in about March 2001 she made further contact with Mr Cusmano, who expressed interest in purchasing the property. He brought a friend, who was said to be a real estate agent, to look at the property. According to the defendant, the friend told her that bank valuations were not to be trusted and that the property would fetch no more than $300,000 if put on the open market. Mr Cusmano denied ever visiting the property with a real estate agent or with any person introduced to the defendant as a real estate agent.

10 In late April 2001 the defendant was served with a final notice to vacate the property by 7 May 2001. She said that she again met with Mr Cusmano. According to the defendant, also present at the meeting at the defendant's house were Mr Cusmano's secretary, Antigone, and Mr Ivo Boscariol. The defendant swore that as a result of her discussions with Mr Cusmano it was agreed that she would sell him the property in exchange for:

(a) a sum sufficient to pay out her debts to the Bank and arrears of rates (about $250,000);

(b) a 7.2 hectare block of land owned by him near Warwick in the State of Queensland;

(c) sufficient funds to pay for the removal and relocation of the house on the property to the block of land in Queensland (about $40,000); and

(d) if required, help from Mr Cusmano in the form of technical assistance and access to skilled assistance with the moving of the house to the block of land in Queensland.

11 The defendant said that on 10 May 2001 Mr Cusmano telephoned her and said that he had a contract of sale prepared by his lawyers for her to sign. He asked her to come to an office in Bridge Road, Richmond, a few doors down from his office at 449 Bridge Road. She thought that this was a solicitor's office. Ms Cirss said in her affidavit that she had been trying to contact Mr Cusmano the day before.

12 On 10 May 2001 the defendant signed a Contract Note for the sale of the property to "Sam Cusmano and/or His Nominee" for the sum of $250,000 payable by a deposit of $6,994.40, which was paid that day on behalf of the vendor to the Bank, and the balance on 24 May 2001. A special condition was that the purchaser would give the vendor free occupation of the premises for a period of six months from the day of settlement in consideration of the vendor removing all existing improvements from the property so as to leave a cleared vacant site. The defendant said that she pointed out to Mr Cusmano that the Contract Note did not contain all of the terms previously agreed between them. He said that he always honoured his moral contracts and that she only had half an hour to consider whether or not to sign. The defendant said that, believing this was the only alternative to losing the property and being evicted that day or the next and left with nothing, and trusting Mr Cusmano completely, she signed the contract.

13 Mr Cusmano said in his affidavit in opposition that toward the end of April or in early May 2001 he was contacted by the defendant who inquired whether he would be interested in purchasing the property. He said that the defendant told him that she reluctantly wanted to sell as the Sheriff had advised that she must vacate the property. Mr Cusmano said that he subsequently visited the property which was the first time he had been inside. He said that he told the defendant that he had no interest in the house as he would be purchasing the property as a development site. He offered the defendant $250,000 for the property on the basis that she could continue to reside there for six months rent free, which would give her time to find suitable alternate accommodation and to remove the house from the land.

14 Mr Cusmano said that in the discussion on this day the defendant told him that she planned to move to Queensland. He told her that he and his brother were selling a family property in Warwick which she could purchase if she was interested for about $40,000. He denied that he made any of the other promises alleged by the defendant. After offering to purchase the property for $250,000 he left the defendant to consider the offer.

15 About a week later, on 10 May 2001, Mr Cusmano was contacted early in the morning by the defendant. She said that she wanted to accept his offer, but she was concerned as the Sheriff was due to evict her at noon that day. At Mr Cusmano's suggestion, the defendant came to see him straight away at his panel beating shop in Richmond bringing with her all relevant papers. He said that he was not prepared to enter into a contract until he was certain that the Sheriff was not going to take possession. He therefore contacted the Bank's solicitor and arranged to pay the arrears of $6,989 immediately. It was agreed with the defendant that that sum and any associated costs would constitute the deposit. After payment of $6,994.40, the Contract Note was prepared and signed at the office of a real estate agent, TCI Property Consultants, at 463 Bridge Road, Richmond. Mr Cusmano denied that he in any way pressured the defendant to sign the contract. He said that Ms Cirss signed the documentation "freely and voluntarily".

16 Settlement took place at the end of May 2001 with the defendant receiving over $16,000 after payment out of the Bank and other expenses. Solicitors acted for the defendant on the settlement of the sale. Although the defendant stated that she could not recall ever seeing any documentation concerning the nomination of the plaintiffs, Vimplane Pty Ltd and Gemleigh Peak Pty Ltd, as purchasers they were named as the purchasers in the statement of adjustments and the defendant's solicitors' account to her, but not in a subsequent Notice of Disposition of an Interest in Land. Furthermore, the plaintiffs' solicitor, Anthony Paul Rockman, stated in an affidavit sworn on 3 March 2005 that a Sale of Land Nomination Form and a Transfer of Land which named the plaintiffs as transferees were forwarded to the defendant on 21 May 2001. The plaintiffs became registered as the proprietors of the property as tenants in common in equal shares on 11 September 2001.

17 The defendant said that following the settlement she contacted several house removalists. None would transport the house to Queensland. They told her the distance was prohibitive and that three separate permits would be required to take the house through three States. The defendant said that she also became aware that the house had been declared to be subject to a Heritage overlay and that it would not be possible to remove it. She said that she told Mr Cusmano of these difficulties. He denied this.

18 By a letter dated 7 November 2001 the plaintiffs' solicitors wrote to the defendant reminding her that she was required to demolish or remove the house within the six month period stated in the contract. Nothing happened until, by a letter dated 5 June 2002, the same solicitors again wrote to the defendant serving a Demand for Possession of the property on or before 28 June 2002. The defendant responded by a letter dated 24 June 2002 in which she identified the unfulfilled promises made by Mr Cusmano. They were said to include the following:

"a. That a property of 7.2 acres [sic] at Warwick, Queensland would be transferred to me;

That I would be paid an additional $40,000.00 (which I intend to use partly to transfer the house to the Warwick property); and
That I would be permitted to remove the house from the Northcote property."

19 Again, nothing further happened until the plaintiffs issued this originating motion. The defendant said that in November 2004 Mr Cusmano contacted her and they met over coffee. He served her with the court papers in this proceeding. The defendant said that Mr Cusmano offered her $20,000 to settle. She told him he had to be joking and that he had not been fair. Mr Cusmano allegedly said that he had treated the defendant more fairly than the banks would have and that she had never done anything about the land in Queensland, which he had now sold. Mr Cusmano denied a conversation to this effect, although he agreed that he told the defendant that she had not honoured the contract and not moved from the premises. When she asked about the property in Queensland, which he had originally offered to sell to her, he told her there was nothing to discuss as it had already been sold.

20 The defendant deposed that in the days leading up to the hearing fixed for 14 December 2004 she became increasingly anxious and distressed. She planned to appear in person because she had no funds to engage a solicitor to represent her. She said that she was trying, unsuccessfully, to assemble the affidavit material in compliance with the order of Master Wheeler. The defendant continued:

"My disorganization of thoughts and actions worsened and I felt hopeless, helpless and confused."

21 On 9 December 2004 Ms Cirss consulted a psychiatrist, Dr Rajan Thomas, who had treated her previously. He examined the defendant. By a facsimile dated 9 December 2004 Dr Thomas wrote to the Court as follows:

"This is to confirm that Bridget Cirss used to attend the clinic in 2002 and again from now onwards.

She has long standing Depressive illness and her Depression is now severe and worse. She is disorganised and is not in a fit mental state to represent herself in a court.

I request that the court case may be postponed until she recovers from her illness."

22 The defendant said that because of the short time left between seeing Dr Thomas and the hearing date, Dr Thomas was unable to prepare a report for the Court specifically addressing the immediate circumstances. However, Dr Thomas made available a copy of a report dated 10 August 2003 which had been prepared for Ms Cirss' Workcover claim. In that report Dr Thomas said that the defendant had been a patient of his between June and September 2002. The report continued:

She developed severe back pain while lifting a patient in June 1999, when she was working at the Nursing home. She was in severe pain and since then she could not go back to work. She lost her job. She became depressed and disorganised. She tried to cope with the depression and loss of job, but failed. She was impaired with her judgement and as result she could not pursue her entitlements. This led to her having to sell her belongings one by one to sustain herself. She sold her house during the depressive phase without an appropriate contract and ended up losing everything. She attempted to set it right, but due to her disorganised state she could not pursue her rights and consider legal issues. During this process her depression became more severe and she became suicidal.

When I saw Brigitte, she was extremely depressed and tearful and was unable to give a coherent history or events leading to her current state.

Prior to the accident she has been a highly efficient, well organised and had been competent person.

She does not have any past psychiatric history or any previous psychiatric treatment. She does not abuse alcohol or any other illicit drugs.

She has sold her house to pay for her debts. She sold the property in haste during the state of depression and did not get what she was promised by the buyer. When I saw her last, she was awaiting eviction orders. She was also worried about her son who abuses drugs and takes advantage of her situation.

She has all features of major depression with feeling depressed, with loss of weight, poor concentration, lack of energy and hopelessness. She also expresses suicidal ideas. Her high-disorganised state is due to her depressive state in my opinion, which resulted from the injury at work."

23 The defendant said that she made arrangements for her son, Damien, to deliver a copy of Dr Thomas' August 2003 report to the Court on 14 December 2004. In his affidavit sworn on 23 February 2005, Damien Cirss deposed that at approximately 9.30 a.m. on 14 December 2004 he went to the Supreme Court and spoke to the Associate to Master Wheeler. He told her that he wished to file with the Court his mother's medical report as she was unwell and was meant to appear that day. Mr Cirss said that the Associate at first did not give him any assurances that the Court would accept his mother's reasons for not appearing, saying that she could "make no promises". She took the report from him and left the room. When she returned a short time later she said that she had taken a copy of the report and that "... that should be all right ..." Mr Cirss said that he took this to mean that it would be accepted by the Court that his mother was unfit to appear on that day and that the Court would fix another day for the matter to be heard. For that reason he did not stay at the Court to see what took place at the hearing.

24 Exhibited to an affidavit of Dr Prabakar Rajan Thomas sworn on 2 March 2005 and filed by the defendant in support of this application was a copy of his report dated 28 February 2005. In that report Dr Thomas stated:

"I am writing this report at your request in regard to the mental state of the above-mentioned person.

Ms Cirrs first attended my clinic on 27.6.02 with major depressive illness. At this time she presented with signs of total Disorganisation and inability to think coherently. She also expressed feelings of hopelessness and suicidal ideation. She was diagnosed to have Major depressive illness.

On 9.12.04, when Ms Cirrs presented at my clinic, she did so without any appointment. She was very tearful and unkempt in her appearance. She was unable to express herself and was found to be depressed and disorganised in her behaviour and thinking, as earlier. She kept repeating that she had lost her house but could not elaborate further. Her thoughts were irrational.

In my opinion, Ms Cirrs suffers from relapse of Major Depressive illness and it is more severe, to the depression with which she presented in 2002. I strongly felt that she was not in a fit state to represent herself in the court proceedings."

25 In his affidavit Mr Rockman stated that when the matter was called on 14 December 2004, the Master noted that there were two documents on the Court file from a psychiatrist for the defendant. Further, when the matter was heard later that day in the Practice Court by Hansen J, counsel for the plaintiffs, Mr Bloch, drew his Honour's attention to the two documents from the defendant's psychiatrist. After considering all of the material, his Honour entered judgment for the plaintiffs, but stayed execution for possession for 45 days.

26 Mr Rockman further deposed that on 16 December 2004 he forwarded a letter to the defendant enclosing a copy of the order made by Hansen J. He explained that if the order was not complied with the plaintiffs would issue a warrant for possession. On 16 February 2005, the day after the warrant for possession was issued, Mr Rockman was contacted by the defendant's solicitors for the first time.

27 Exhibited to Ms Cirss' affidavit in support of her application was a draft counterclaim which she said she intended to file if the judgment were set aside.

28 Rule 49.02(2) of the Supreme Court Rules provides that the Court may set aside any judgment or order obtained "where a party is absent at the trial". However, pursuant to r.49.02(3) an application under paragraph (2) "shall be made within 14 days after the trial". As has been previously stated, the defendant's application to set aside the judgment entered on 14 December 2004 was not issued until 24 February 2005, well outside the 14 day period.

29 The Court may extend any time fixed by the Supreme Court Rules, including the 14 day period fixed by r.49.02(3)[1], "whether or not an application for the extension is made before the time expires" (r.3.02). The decision whether or not to extend time is discretionary. The overriding principle is what the interests of justice require.[2] Four well-recognised factors which require consideration on any application for an extension of time are the length of the delay, the reason for the delay, whether there is an arguable case and the extent of any prejudice to the other party.[3]

30 In this case the delay of over a month in making the application is perhaps not that significant in the overall scheme of things. However, as Jenkins LJ said in Grimshaw v Dunbar[4], delay in itself may not be important, but delay prejudicing the other party would be material. What has to be remembered in this case is that the defendant has been a trespasser in the property since the six month contractual occupation period expired on 24 November 2001 or, at the latest, since 28 June 2002, being the date set out in the Demand for Possession. Every day that she remains in occupation of the property without paying rent prejudices the plaintiffs.

31 The next factor is the reason for the delay. The defendant's material contains no explanation for the failure to comply with the 14 day period within which to make the application. Mr Vout of counsel, who appeared on behalf of the defendant, submitted that the Court should infer that the very circumstances which prevented her from attending the hearing in the first place, namely her impecunious position and her ongoing major depressive disorder, were still operative in respect of the delay.

32 On the other hand, Mr Bloch of counsel, who appeared on behalf of the plaintiffs, submitted that the defendant's failure to apply quickly was part of a consistent pattern of delay designed to secure for herself as long a period of rent free accommodation as possible. He submitted that a defendant who genuinely perceived that there had been an injustice as a result of the Court entering judgment in her enforced absence would have applied to set aside the judgment at the earliest practicable opportunity after service of the order.

33 In my opinion, there is much to be said for Mr Bloch's submission. Certainly, in the absence of any explanation from the defendant as to why it was only when eviction from the property loomed that she applied to set aside the judgment, it is hard to see why the interests of justice would require that the time limit be extended. Nevertheless, I would be reluctant to refuse the application to extend time on this ground alone, particularly if I were to hold that the defendant had an arguable case on the merits. This factor is relevant not only to the extension of time application but also to the setting aside of the judgment application and, therefore, it is to that application that I now turn.

34 In Rosing v Ben Shemesh[5] the Full Court of this Court followed the decision of the Court of Appeal in Grimshaw v Dunbar[6] in determining that relevant considerations on an application to extend the time within which to apply to set aside a judgment "where a party is absent at the trial" were:

(a) the reason why the party failed to appear when the case was heard;

(b) whether there has been any delay by the absent party in making the application;

(c) whether the other party would be prejudiced by a new trial in any respect which could not be adequately compensated by a suitable award of costs and the giving of security; and

The second of these considerations, delay in making the application, has already been considered in the context of the extension of time application. The third and fourth of these considerations are similar to the two factors relevant to the extension of time application which have not yet been discussed, namely arguable case and prejudice, and can be dealt with respectively at the same time.

35 Counsel for the plaintiffs submitted that the defendant's explanation for her failure to appear at the hearing on 14 December 2004 should not be accepted as sufficient. Mr Bloch argued that the defendant well understood that the matter was coming on for final hearing on that day as she had previously successfully persuaded Master Wheeler on 25 November 2004 to adjourn the hearing so that she could file affidavit material. He submitted that the defendant's own material showed that she deliberately took the high handed decision not to appear in Court on 14 December 2004. Instead she chose merely to put before the Court, via her son's attendance, Dr Thomas' letter and his August 2003 report.

36 In Adams v Cronin[8], Winneke ACJ, with whom Phillips and Hayne JJA agreed, said of r.49.02(2):

"However, the court, in the exercise of its discretion under this rule, will rarely set a judgment aside which has been properly entered against an absent party where that party, being aware of the date of the trial, has failed to attend at court (see Conrea Nominees Pty Ltd v Doherty Supreme Court, Victoria, Southwell J, unreported 22 July 1992)."

Clearly, the defendant in this case was aware of the date of the hearing yet failed to attend. In Brygel v Stoneham[9], Batt J (as his Honour then was) held that the plaintiff in that case was "within the rare exception spoken of by Winneke ACJ" because he was ill and in no fit condition to attend court. As Batt J said:

"... one's knowledge of migraine enables one to understand the possibility that a person suffering a bout of a particular illness may find himself or herself unable to make decisions, to concentrate or even to communicate coherently in a way in which in hindsight the person can have confidence."

37 Mr Vout submitted that this case was similar to Brygel v Stoneham. Here, the defendant was ill and in no fit condition to attend Court not because of a migraine but because of her psychiatric condition. Although Hansen J decided to continue the hearing notwithstanding that he had before him both Dr Thomas' December 2004 letter and August 2003 report, what was not before his Honour was Dr Thomas' February 2005 report which set out in greater detail Dr Thomas' observations of the defendant in December 2004 and the affidavits of the defendant and her son explaining the circumstances surrounding her failure to attend the hearing. On the basis of that extra material I would be prepared to find that the defendant has shown a reasonable cause for her non-appearance. The psychiatric evidence showed that the defendant, like the plaintiff in Brygel v Stoneham, was affected in her ability to think coherently and to make rational decisions.

38 It is clear law that there is no point in granting the defendant's application if her case is untenable or hopeless. On the other hand, that conclusion cannot be reached on a mere conflict of affidavits.

39 Mr Vout submitted that the defendant had a prima facie defence and counterclaim on the grounds that at all material times she was acting under a special disability and that the contract and transfer of the property were procured by misrepresentation, undue influence, duress and unconscionable conduct on the part of Mr Cusmano which rendered the contract and the transfer void and of no effect. In the circumstances, the conduct of Mr Cusmano was attributable to the plaintiffs.

40 Mr Bloch made several submissions concerning what he said were serious weaknesses in the defendant's case. They included the submission that there was no evidence that the defendant was under a special disability at the time she contracted to sell the property; the submission that if the defendant genuinely had any complaints about Mr Cusmano's conduct these would surely have been raised with the solicitors who acted for her on the conveyance; the submission that if there were other parts to the consideration for the purchase of the property these would also have been raised with her solicitors and the submission that when the defendant wrote her logical and rational letter dated 24 June 2002 in response to the plaintiffs' solicitors' Demand for Possession her complaint related only to the allegedly unfulfilled promises made by Mr Cusmano in respect of the further consideration and no mention was made of the claim that she had been pressured into selling the property at a time when she was suffering from psychiatric problems.

41 Because of the view I have reached on this matter it is unnecessary to assess the strength of these submissions. The approach I have taken is to accept at face value the case raised by the defendant. Nevertheless, I am not prepared to find that the defendant has a prima facie case on the merits in respect of regaining ownership of the property. As Mr Bloch submitted, dismissal of the defendant's application will not deprive her of the opportunity to sue the plaintiffs and Mr Cusmano for damages in respect of the causes of action outlined in the draft counterclaim, although it would prevent her from regaining ownership of the property. No matter how successful the defendant might be in her proposed claim, it seems to me inevitable that the property will have to be sold. There is no dispute that Mr Cusmano paid Ms Cirss the sum of $250,000 for the property and, if the transfer is to be declared void and of no effect, that money together with an appropriate allowance for the loss of use of that money in the intervening period of what is now nearly four years will have to be repaid by Ms Cirss. It is clear that Ms Cirss is in no position to meet that obligation either directly or by borrowing. The property would have to be sold. Indeed, the orders sought in the draft counterclaim contemplated that very step.

42 In the circumstances, in my opinion, there is no injustice in confining the defendant to a claim for damages, should she choose to commence litigation.

43 There is a further reason why, in my opinion, it would not be appropriate to set aside the judgment. The course proposed by the defendant was that pleadings should be ordered and the claim and counterclaim go to trial in the normal way. Even on the tightest timetable and with an order for a speedy hearing, such a course would extend the defendant's rent free occupation of the property for many months, if not considerably longer.

44 Although a requirement that rent be paid could be imposed as a condition of the setting aside of the judgment, pursuant to r.1.14(1)(b) of the Supreme Court Rules, this would not assist Ms Cirss as there was no realistic suggestion that she could meet such an obligation. Nor could she provide any security. Therefore, in my opinion, there is a possible prejudice to the plaintiffs if the judgment were set aside, but the defendant was eventually unsuccessful, in that the plaintiffs would have been wrongfully deprived of possession for yet a further period without any chance of financial compensation. Such prejudice could not be compensated or overcome by a suitable award of costs.

45 As I have concluded that the defendant does not have a prima facie case on the merits in respect of regaining ownership of the property and that prejudice might be caused to the plaintiffs which cannot be compensated for by an order for costs, the application to set aside the judgment of the Court entered on 14 December 2004 should be refused. In those circumstances, there is no point in extending the time within which to apply to set aside the judgment and that application will also be refused.

46 The actual order I propose to make is that the defendant's application by summons filed on 24 February 2005 be dismissed. I note that during the course of argument, Mr Bloch gave an undertaking on behalf of the plaintiffs not to execute on the order for possession for a further 30 days in order to give the defendant a further opportunity to relocate. By my calculations this means that the defendant must leave the property on or before 14 May 2005.

[1] Crotty v Clarke (1896) 22 VLR 594 at 606 per Williams, Holroyd and Hood JJ
[2] Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at 527 per Gummow and Hayne JJ and at 539 per Kirby J
[3] Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942; Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196; Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at 542-543 per Kirby J and State of Victoria v Davies [2003] VSCA 65; (2003) 6 VR 245 at [23] per Batt JA.
[4] [1953] 1 QB 408 at 415
[5] [1960] VicRp 28; [1960] VR 173
[6] [1953] 1 QB 408
[7] [1960] VicRp 28; [1960] VR 173 at 176 per Herring CJ, O'Bryan and Dean JJ. See also Vacuum Oil Pty Co Ltd v Stockdale (1942) 42 SRNSW 239 at 243 per Jordan CJ with whom Davidson and Roper JJ concurred.
[8] Unreported, Court of Appeal, 6 September 1996
[9] Unreported, 4 April 1997

Supreme Court (General Civil Procedure) Rules 1996

At a glance

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Judgment (78 paragraphs)

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