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[2025] VSC 719
General information, not legal advice.
Supreme Court of Victoria
2025-11-20
O’Meara J
Original judgment source is linked above.
APPEALS - Appeal from orders of an Associate Justice dismissing proceeding for want of prosecution - First plaintiff solicitor's repeated non‑compliance with pre‑trial orders - Some unusual features - Pre‑trial orders again made, but with first plaintiff required to show cause if further non‑compliance - Further non‑compliance - First defendant's summons - Subsequent events and affidavit advising of additional bases for relief sought - Affidavit and written submissions served - No appearance by first plaintiff at hearing before Associate Justice - Summons amended and proceeding dismissed - Appeal in the nature of rehearing - Whether any claimed errors established - Whether Court had jurisdiction - Whether first plaintiff's defaults were 'intentional and contumelious' - Whether finding of 'no life interest' - Whether material denial of procedural fairness - Whether error in ordering costs of the proceeding on an indemnity basis - Supreme Court Act 1986 (Vic), ss 17(1A) and (3) - (Vic), rr 1.14(2), 2.01(1), 2.04(1), 24.01(c), 24.05, 36.01(1), 46.02(1), 46.05(1), 46.07(1), 77.01(1), 77.02 and 77.06 - considered - Appeal dismissed.
2 On 16 October 2022, the first plaintiff and his then wife, as second plaintiff ('wife'), commenced proceedings by writ and statement of claim against the first plaintiff's mother, Jadwiga Elizabeth Welner, as first defendant ('mother'), and the Registrar of Titles, as second defendant. The latter defendant has played no active part in the proceeding.
3 Earlier this year, the first plaintiff's wife was removed from the proceeding. Since then, the only active parties have been the first plaintiff and his mother.
4 In broad terms, the plaintiffs claimed in respect of real property situated at 3 Field Street, Caulfield South ('Premises'). At all material times, the mother has been the registered proprietor of the Premises, but the plaintiffs seem variously to have resided there.
5 In that general context, among other things, the plaintiffs claimed that -
(a) in or around July 2014, the mother promised, in substance, that the first plaintiff could live in the Premises for as long as he wanted;
(b) in February 2020, the mother promised that if the first plaintiff and his family chose to stop living in the Premises it could be sold and she would gift them $500,000 from the proceeds to assist with purchasing a new home;
(c) in about May 2021, the mother promised that if the first plaintiff and his family required a larger house, the Premises could be sold and she would contribute $800,000 from the proceeds to assist them with the purchase of a new home;
(d) at all such times, the mother also said that the first plaintiff and his family could stay in the Premises if they wanted to;
(e) the plaintiffs have done things that amount to part performance of the promises that, in the circumstances, they should be entitled to enforce;
(f) unconscientiously, the mother resiled from those promises and is estopped from doing so;
(g) the plaintiffs were otherwise entitled to equitable compensation or to enforce the promises to pay sums out of the sale proceeds of the Premises;
(h) the plaintiffs were entitled to an interest in the Premises which the mother holds on constructive trust during their lifetime; and
(i) in substance, the claimed interest supports a caveat lodged by the plaintiffs on 3 September 2022.[1]
6 The mother defended the claim, and also counterclaimed with a view to removing the caveat. Among other things, the mother's amended defence and counterclaim refers to a residential tenancy agreement made in August 2014.[2]
7 In reply and defence to the counterclaim, among other things, the plaintiffs claimed that the residential tenancy agreement 'is and was at all relevant times a sham'.[3] Among other things, it was said that the plaintiffs had not ever paid any rent.
8 The mother subsequently filed and served a rejoinder. In particular, she denied the allegation that the residential tenancy agreement is a sham.[4]
9 Numerous timetables of orders were made with a view to bringing the proceeding to trial.
10 On 23 December 2022, Keith JR made a timetable of interlocutory orders, on the papers.[5] The proceeding was not then given a trial date.
11 On 6 March 2023, Daly AsJ amended aspects of the timetable, by consent.[6]
12 Aspects of the timetable were further amended by Baker JR at a hearing on 30 May 2023. The first plaintiff appeared in person and as solicitor for his wife while his mother was represented by counsel. The plaintiffs were ordered to pay the mother's standard costs of and incidental to the hearing.[7]
13 Orders were again made by Keith JR on the papers on 1 August 2023, including extending the time for the parties to have attended mediation to 16 August 2023.[8] It seems that mediation in fact took place on 1 September 2023.
14 Orders were made by Ierodiaconou AsJ at a hearing on 12 December 2023. The first plaintiff again appeared in person and as solicitor for his wife and his mother was again represented by counsel. Among other things -
(a) the proceeding was listed for hearing on 15 October 2024 on an estimate of three to four days;
(b) the plaintiffs were directed to file and serve an outline of all of the oral evidence intended to be adduced at trial by 4pm on 1 August 2024; and
(c) the plaintiffs were directed to serve a draft e‑court book by 4pm on 15 August 2024.[9]
15 I pause to note that, in structure, her Honour's pre‑trial orders worked back from the listed trial date of 15 October 2024. Accordingly, on dates in August 2024, the plaintiffs were required to file and serve their outlines of oral evidence and a draft e‑court book, to which the mother was required to respond by 2 September 2024. The following day, the plaintiff was required to file a notice of trial and, on 16 September 2024, the completed e‑court book. Following that, a combined folder of authorities, outlines of argument, a joint statement of issues and agreed facts and a trial plan were all to be filed or provided by 1 October 2024.
16 The plaintiffs failed to comply with the orders requiring them to file and serve outlines of oral evidence by 1 August 2024 and serve a draft e‑court book by 15 August 2024. It follows that the plaintiffs did not comply with the first two of the substantive steps required to be completed in order that the proceeding might be presented for trial on the listed date. The consequence was that the mother could not thereafter take the steps that she had been ordered to complete. In substance, the plaintiffs' non‑compliance stymied the formal preparation and presentation of the proceeding for trial.
17 The mother sought that the proceeding be listed for directions.[10]
18 A directions hearing took place before Englefield JR on 27 and 28 August 2024.[11] The plaintiffs failed to appear, although the mother was represented by counsel.
19 Under 'Other Matters', the Judicial Registrar recorded, among other things -
20 The Judicial Registrar thereafter extended various dates for the completion of interlocutory steps. Among other things, the Judicial Registrar ordered that the time for the plaintiffs to file and serve an outline of oral evidence was extended to 4pm on 10 September 2024.[13]
21 The plaintiffs failed to comply with that order.
22 The proceeding came before Lorenz JR for directions on 17 September 2024.[14] The first plaintiff did not appear, although his wife appeared via Zoom. The mother was represented by a solicitor.
23 Under 'Other Matters', the Judicial Registrar recorded, among other things -
24 Thereafter, the Judicial Registrar ordered an extensive interlocutory timetable that did not significantly alter the structure of pre‑trial preparation earlier ordered. Among other things, the Judicial Registrar -
(a) vacated various earlier orders, including the order that had listed the proceeding for trial on 15 October 2024;
(b) re‑listed the proceeding for trial on 19 August 2025; and
(c) directed the plaintiffs to file and exchange an outline of all of the oral evidence to be adduced at trial by 4pm on 8 April 2025.
25 The plaintiffs failed to comply with the latter order.
26 On 11 April 2025, the mother filed a summons seeking the following relief -
27 Among other things, the supporting affidavit of the mother's solicitor, Mr Skeels, deposed to -
(a) the first plaintiff's non‑compliance with Court orders which, it was said, evinced 'an unwillingness on [the first plaintiff's] part to prosecute his claim';[16]
(b) the willingness of the mother to proceed to trial on 15 October 2024, in respect of which it was said that the mother was being 'vexed and prejudiced by the conduct of the First Plaintiff in not prosecuting his claim in a timely manner';[17] and
(c) the self‑executing orders sought by the mother 'having regard to the First Plaintiff's history of non‑compliance'.[18]
28 At some point, the proceedings between the wife and mother resolved. On 7 May 2025, on the papers and by consent, Irving AsJ ordered, in substance, that the wife's claim as well as the relevant counterclaim of the mother be dismissed.[19]
29 The mother's summons came before Irving AsJ on 13 May 2025.[20] The first plaintiff and mother were each represented by counsel.
30 Under 'Other Matters' in amended orders dated 19 May 2025, his Honour recorded relevantly as follows -
(i) he shall not be testifying at the trial of the proceeding; and
(ii) he intends to subpoena the former second plaintiff to appear at trial.
- The first defendant has informed the Court that she will be preparing for trial on that basis.[21]
31 In a practical sense, the effect of the leave formally reserved under 'Other Matters' was to render the orders thereafter made peremptory in character, at least insofar as they applied to the first plaintiff.
32 That said, his Honour's orders did not alter the structure of pre‑trial preparation earlier established.
33 In that general connection, his Honour confirmed the trial date of 19 August 2025 together with various other orders earlier made and, otherwise, specifically, ordered the first plaintiff to -
(a) file a notice of trial at least six weeks before trial (that is, by 8 July 2025);
(b) serve a draft e‑court book by 4pm on 17 June 2025;
(c) file and serve an e‑court book by 4pm on 8 July 2025;
(d) pay the mother's costs of and incidental to the application on a standard basis.[22]
34 The plaintiff did not serve a draft e‑court book on 17 June 2025.[23]
35 The following day, 18 June 2025 at 4:30pm, the mother's solicitor emailed the first plaintiff as well as the Court. Among other things, the email stated -
Pursuant to the leave granted at Recital A of Other Matters in the Orders [of 19 May 2025], the [mother] hereby applies to list this matter on short notice for the first plaintiff to show cause as to why the proceeding should not be struck out for want of prosecution.[24]
36 The first plaintiff responded 20 minutes later, relevantly as follows -
I have had flu for the last week, and have only returned to work today.
I will send you a separate email regarding a proposal concerning the dispute in general.
Regarding the filing of the Court Book, and while the parties are in negotiations regarding global settlement of the dispute, I would request consent orders to file the Court Book by 25 June 2025. That should not unnecessarily delay the proceeding. Considering you are unlikely to procure relief earlier than that [from] the Court, and the parties' continuing obligations to seek to resolve the dispute, it is strongly encouraged that your client consent to such orders.
I look forward to your response.[25]
37 The mother's solicitor replied three minutes later, stating, in substance, that the parties were not in negotiation and that the mother did not consent to any proposed extension of the orders.[26]
38 From the events to which I have referred, it will be plain (or, at least, tolerably clear) that -
(a) proceedings were commenced in October 2022;
(b) multiple timetables of orders were made with a view to bringing the proceeding to trial;
(c) there was some degree of non‑compliance with every timetable ordered;
(d) in particular, on 12 December 2023, Ierodiaconou AsJ listed the proceeding for trial on 15 October 2024;
(e) in structure, her Honour's timetable of orders worked back from the allocated trial date and depended upon the plaintiffs taking substantive steps in August 2024;
(f) the plaintiffs did not take those steps and, consequently, the substantive preparation and presentation of the proceeding for trial was stymied;
(g) on 27 and 28 August 2024 -
(i) Englefield JR adjusted the earlier timetable with a view to the substantive steps still being undertaken prior to the listed trial date;
(ii) the mother pressed for self‑executing orders, although that was refused;
(h) the plaintiffs again did not take the first step required and the matter came before Lorenz JR on 17 September 2024, at which -
(i) the mother again pressed for self‑executing orders, which was again refused;
(ii) the Judicial Registrar vacated the trial date of 15 October 2024, re‑listed the proceeding for trial on 19 August 2025 and re‑made orders in respect of the taking of substantive steps commencing in April 2025;
(i) the plaintiffs again did not take the steps required which stymied presentation of the proceeding for trial and the mother issued a summons that came before Irving AsJ on 13 May 2025, at which hearing his Honour confirmed the trial date of 19 August 2025, effectively removed the requirement that the first plaintiff serve outlines of evidence and required that the first plaintiff serve a draft e‑court book by 17 June 2025;
(j) further, his Honour specifically noted, in effect, that in the event of any further non‑compliance on the part of the first plaintiff, the mother would have leave to list the matter on short notice for the first plaintiff to show cause as to why the proceeding should not be struck out for want of prosecution;
(k) nonetheless, the first plaintiff again did not take the relevant substantive steps.
39 It follows that, notwithstanding the various timetables of orders made with a view to bringing the proceeding to trial, by 18 June 2025 the first plaintiff had -
(a) on four occasions, failed to comply with the first of the substantive steps falling upon him;
(b) thereby, on each occasion, stymied the preparation of the proceeding for trial as ordered; and
(c) ultimately taken no ordered step with a view to preparing and presenting the case for determination at trial in the period of coming up to three years since proceedings had been issued.
40 I should add that it will be evident that since at least August 2024, the mother had been seeking the making of self‑executing orders and, more recently, had been granted leave to list the matter on short notice in the event of further non‑compliance by the first plaintiff.
41 While, in some cases, steps of that kind might be thought to be excessively prickly and aggressive, in the present case I can well understand the stance taken by the mother and ultimately adopted by Irving AsJ. Among other things -
(a) on 31 August 2022, the mother, who seems presently to be at least 72 years of age, had advised the first plaintiff that she needed to sell the Premises and explained the substance of the reasons why that was so;[27]
(b) the plaintiffs subsequently commenced proceedings claiming that the mother made the various alleged 'promises' that form part of the apparent foundation for the maintenance of the caveat lodged on 3 September 2022;[28]
(c) in her defence, the mother has, among other things, denied the various alleged 'promises' and, indeed, given an alternative explanation that would not support the relief claimed;[29]
(d) the first plaintiff has since continued to reside at the Premises;[30]
(e) while the proceeding remains undetermined, it is not obvious that that state of affairs was or is likely to change; and
(f) it follows that the first plaintiff would have presented, to at least the mother's representatives, as likely to continue to enjoy the effect of the primary relief sought in the proceeding unless it could be pressed on for determination.
42 In that sense, the major source of the impetus propelling the present case to final determination seems to have been somewhat different to that applicable to most other cases.
43 In the circumstances to which I have referred, by email sent on 8 July 2025 at 10:14am, the Court advised the parties that an application on summons could be made returnable as a 'show cause hearing' before Ierodiaconou AsJ on 31 July 2025 at 11:30am.[31]
44 On the same day that the email was received, the mother filed a summons ('Summons') seeking -
45 The Summons was supported by an affidavit sworn the previous day by the mother's solicitor.[33] Among other things, the solicitor deposed that -
The first plaintiff has again failed, refused or neglected to comply with the orders of the Court. On behalf of the first defendant I seek an order dismissing the proceeding for want of prosecution and costs.[34]
46 The Summons identified that the application would be heard by Ierodiaconou AsJ on 31 July 2025 at 11:30am.[35]
47 On 24 July 2025, the mother's solicitor swore a 'consolidated affidavit' ('Consolidated affidavit') that deposed to many of the events to which I have earlier referred as well as several steps that had occurred or not occurred since the solicitor's earlier affidavit was sworn.[36]
(a) the events related to the various timetables of orders, as well as the non‑compliance to which I have earlier referred;[37]
(b) certain further orders made by Irving AsJ on 13 May 2025 (as amended by orders made on 19 May 2025) that the first plaintiff had since also failed to comply with, particularly the orders which had required the first plaintiff to -
(i) in substance, file a notice of trial by 8 July 2025; and
(ii) file and serve an e‑court book by 8 July 2025;[38] and
(c) a hearing notice issued by the Court on 11 July 2025 that directed the first plaintiff to pay the setting down fee and file a notice of trial by 14 July 2025 which the first plaintiff had also failed to comply with.
49 In that general context, the solicitor deposed that 'the proceeding has been at a virtual standstill since 12 December 2023' and then deposed to the prejudice suffered by the mother as a consequence of the 'inordinate delay associated with the determination of this proceeding'.[39]
50 In light of the failures of the first plaintiff to file and serve a notice of trial, in particular, the solicitor deposed further that -
51 On 29 July 2025, the mother filed a detailed outline of submissions,[41] the presently relevant paragraphs of which read as follows -
...
- Should this Honourable Court dismiss [the first plaintiff's] claims against [the mother] it must follow that orders on her counterclaim requiring [the first plaintiff] to withdraw the Caveat [be] made and [the mother] applies for such order together with costs.
52 On 31 July 2025, the solicitor for the mother swore an affidavit deposing to the service upon the first plaintiff of the -
(a) Summons;
(b) Consolidated affidavit; and
(c) mother's outline of submissions.
53 For his part, the first plaintiff did not file and serve any affidavit in respect of the matters to which the solicitor deposed, or any other matters, and did not appear at the hearing before Ierodiaconou AsJ on 31 July 2025 at 11:30am. The mother appeared at that hearing represented by counsel.
54 In the circumstances, the hearing before Ierodiaconou AsJ was relatively short. Among other things, the transcript of the hearing reveals that -
(a) her Honour had the matter called and noted that the first plaintiff did not appear;
(b) her Honour noted the contents of the affidavit of service and said that she had read the Consolidated affidavit;
(c) in that connection, her Honour stated -
It seems to me that I should dismiss the proceeding for want of prosecution on the basis that there has been repeated noncompliance with court orders; that the first plaintiff is certainly on notice of these issues; the foreshadowing of the application has been made in several orders noted in other matters. Then there's the issue of the caveat. The counterclaim seeks that the caveat be withdrawn.
It seems to me that it must surely follow from the dismissal that the caveat must be withdrawn because it effectively means that the first plaintiff has no case and ... the first plaintiff's case ... is the only foundation upon which the caveat is made.
(d) discussion ensued concerning the form of the order to be made for removal of the caveat, in the course of which her Honour indicated that leave would be granted to the mother to amend her Summons to include an application that the caveat be withdrawn;
(e) counsel thereafter applied for an order for the costs of the proceeding on an indemnity basis and submitted, relevantly, as follows -
... this proceeding has been on foot since 2022, and it really hasn't progressed very far because of the conduct of [the first plaintiff]. He's been in breach of numerous orders to have this case disposed of in a reasonable period of time, and we've just been stuck because of his noncompliance. We've had to come to court many, many times to have this proceeding moved on. My client is an elderly woman.
She wants to deal with the property, and we've expressed that many times to [the first plaintiff], and she simply can't because of this proceeding - because of the contumelious disregard by [the first plaintiff] of the court's orders and his lack of proper approach to this in breach of the Civil Procedure Act, we'd say it's a compelling case that [the first plaintiff] suffer the unusual [exceptional] order indemnity costs. And further, ..., he's been on notice pursuant to the summons - that's the order that we're claiming - and he's not here.
(f) her Honour accepted that submission, and thereafter referred to her intention to include brief reasons in the form of orders to be made that would then address the reasons for dismissal of the proceeding, the removal of the caveat and the order for indemnity costs; and
(g) as a 'formality', counsel referred to a proposed amended summons that also sought relief under r 24.01(c) and judgment for the mother on her counterclaim, which her Honour described as being 'fine'.
55 Her Honour's written order records, relevantly, as follows -
OTHER MATTERS:
Application and parties
By summons filed 8 July 2025, the first defendant applies to dismiss the proceeding for want of prosecution pursuant to r 24.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('Rules') and the Court's inherent jurisdiction. I will give leave to amend the summons to include the application being made pursuant to r 24.01(c) of the Rules and for the first defendant to seek judgment on her counterclaim. It follows that ... the first defendant's application includes the first plaintiff withdrawing caveat no. A0288629Y lodged by him over Certificate of Title Volume 10075 Folio 629 (the 'caveat'). The first defendant also seeks costs on an indemnity basis.
The second plaintiff is no longer active in this proceeding. By consent orders made on 7 May 2025, the claim and counterclaim as between the second plaintiff and first defendant were dismissed.
The second defendant is the Registrar of Titles and takes no active part in this proceeding.
Accordingly, the only active parties are a mother (the first defendant) and her son (the first plaintiff).
Material
I read the affidavits of David Campbell Skeels, the first defendant's solicitor, sworn on 7 and 24 July 2025. The latter affidavit is a consolidated one, and the references in these orders refer to that affidavit as the 'Skeels affidavit'. I also read the affidavit of David Campbell Skeels sworn on 31 July 2025, which deposes to serving the summons and supporting material on the first plaintiff.
Background
- The plaintiff has acted tardily in this proceeding. Delays occasioned by the plaintiff are set out in the Keely [sic: Skeels] affidavit.
- This proceeding was listed for trial on 15 October 2024.
- There was non‑compliance by the plaintiff with pre‑trial orders. Recital D of Other Matters of the orders made on 27 or 28 August 2024 record: '[b]y the affidavit, the first plaintiff seeks leave to serve the affidavit on the second plaintiff. This leave is not given. Welner Lawyers ought promptly apply for leave to cease to act.'
- On 17 September 2024, orders were made vacating the trial date and listing the trial on 19 August 2025. Recital D of Other Matters of those orders record:
During the directions hearing, the first defendant's solicitor made submissions for the use of self‑executing orders due to allegations of the first plaintiff's noncompliance of previous orders. The request was rejected. In response, the first defendant's solicitors foreshadowed the filing of an appropriate application, in the event the first plaintiff fails to comply with these orders.
Again, the first plaintiff did not comply with the timetabling orders: see Skeels affidavit, [32]‑[36].
On 11 April 2025, the first defendant filed a summons seeking self‑executing orders against the first plaintiff and a revised timetable. The summons was heard on 13 May 2025.
Orders made on 13 May 2025 (as amended by orders made on 19 May 2025), confirmed the trial date of 19 August 2025. Timetabling orders were made. Paragraph A of those orders states:
In case of non‑compliance by the plaintiff with any Order below requiring the plaintiff to file or serve a document, the first defendant has leave to list on short notice for the first plaintiff to show cause as to why the proceeding should not be struck out for want to prosecution.
- The first plaintiff has not complied with timetabling orders made on 19 May 2025: see Skeels affidavit, [41]‑[48].
- The first defendant is the registered proprietor of 3 Field Street, Caulfield South (the 'property') and the subject of this proceeding and over which the first plaintiff caused a caveat to be lodged. By her counterclaim, she seeks the caveat to be withdrawn.
Submissions
The first defendant filed written submissions on 29 July 2025. The Court is grateful for the submissions, and they have been read. It is unnecessary to reiterate the submissions.
The first plaintiff did not file any material nor appear at the hearing.
Applicable principles
Rules 24.01(c) and 24.05 of the Rules are applicable. I adopt the principles given in Pentridge Village Pty Ltd (In Liq) v Capital Finance Australia (No 3) [2023] VSC 605 at [28]‑[33] and [37]‑[38].
Analysis
I will make orders dismissing the proceeding for want of prosecution.
Firstly, the proceeding may be dismissed per r 24.01(c) given the notice of trial was not filed. The first plaintiff has not filed a notice of trial. The notice of trial was required by 14 July 2025: see email from the Registry to the parties on 11 July 2025 and paragraph 2 of the orders made on 13 May 2025 (as amended by the orders made on 19 May 2025).
Secondly, had I not dismissed the proceeding due to the notice of trial not being filed, I would have dismissed it pursuant to the Court's inherent jurisdiction. This is because the first plaintiff's defaults have been intentional and contumelious. He has repeatedly failed to comply with Court orders. The first defendant has given notice to the first plaintiff of her intention to apply for dismissal for want of prosecution on several occasions. Such an application was recently foreshadowed in the orders made on 13 May 2025. As explained above, the first plaintiff has been repeatedly warned about the effects of non‑compliance. I note the first plaintiff is a solicitor and his law firm is acting on his behalf. I am satisfied that the first plaintiff has received adequate warning about his dilatory conduct.
The consequence of dismissal of the proceeding is that the first plaintiff will be barred from pursuing the claims made in his amended statement of claim filed on 2 March 2023. The central claim is that he has a life interest in the property. He claims that the first defendant holds the property on constructive trust for him and the second plaintiff (his former wife). Relief is sought based on proprietary estoppel and equitable compensation.
By amended counterclaim filed on 27 March 2023, the first defendant seeks the caveat be withdrawn. I will make orders effecting the withdrawal of the caveat. They follow from the dismissal of the first plaintiff's claim because the only basis for the caveat is if the first plaintiff has the rights claimed in the amended statement of claim.
I will make orders for the first plaintiff to pay the first defendant's costs on an indemnity basis. Costs should follow the event. There are special circumstances here that attract an indemnity costs award: see Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189, per Harper J, [7]. The special circumstances are the first plaintiff's repeated non‑compliance with court orders, as described above.
This Order is authenticated by the Associate Judge pursuant to Rule 60.02(1)(b) of the Rules.
THE COURT ORDERS THAT:
- The first defendant has leave to amend her summons in the form handed up to the Court by her counsel on 31 July 2025.
- Pursuant to rr 24.01(c) and 24.05 of the Rules, the first plaintiff's proceeding against the defendants be dismissed for want of prosecution.
- There be judgment for the first defendant on her amended counterclaim filed 27 March 2023.
- The trial currently listed on 19 August 2025 is vacated.
- The Registrar of Titles forthwith remove the caveat in dealing number A0288629Y registered over Certificate of Title Volume 10075 Folio 629.
- The first plaintiff pay the first defendant's costs of the proceeding, including reserved costs on an indemnity basis.
- Liberty to the Registrar of Titles and the first defendant to apply.[42]
56 On 14 August 2025, the first plaintiff filed a notice of appeal in respect of her Honour's orders 2, 3, 5 and 6.
57 The notice states the following grounds of appeal -
58 The matter came before Burgess JR for directions on 9 September 2025.[44] The mother appeared by counsel. The first plaintiff did not appear and had not filed and served an appeal book, as had been required.
59 The Judicial Registrar set down the appeal for hearing and, among other things, ordered that -
In the event that the first plaintiff fails to comply with any order above for the filing or serving of documents, the first defendant has, to the extent necessary, leave to have the matter listed on short notice before a Judge for the first plaintiff to show cause as to why his appeal should not be dismissed for non‑compliance.[45]
60 The first plaintiff subsequently filed and served an appeal book and the first plaintiff and the mother each filed and served written submissions.[46]
61 The appeal came on for hearing on 11 November 2025.
62 As I have noted, the first plaintiff relies upon 10 grounds of appeal. In argument, some of those grounds presented as overlapping.
63 At the commencement of the hearing, the first plaintiff sought to hand up a notice to vacate served on him by the mother.[47] The notice did not go directly to any ground of appeal.
64 In any event, it became apparent that the first plaintiff faced nothing pressing or urgent at the Victorian Civil and Administrative Tribunal. I also indicated that I should be able to deliver judgment in the coming weeks. In those circumstances, the first plaintiff did not press the issue further.[48]
66 More specifically, in respect of ground 1, the first plaintiff's written submissions direct attention to the Summons, as well as the amended summons referred to in the transcript of the hearing before her Honour on 31 July 2025.
67 In that general connection, among other things, the first plaintiff submits that -
(a) the Summons failed to seek the relief ultimately ordered and so is 'defective';
(b) the amended summons has never been served;
(c) her Honour determined the application under r 24.01(c) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('Rules'),[51] which was not the basis upon which the Summons was brought;
(d) when the Summons was filed, the time for serving a notice of trial had not expired; and
(e) the first plaintiff 'could not have been on notice that such matters were to be decided'.
68 In oral argument, the first plaintiff took the argument further and submitted that -
... the [S]ummons as filed and served did not give rise to the jurisdiction to make the decision and the orders as occurred in the hearing and ... the amendment of the summons in [the] hearing was required to enliven the [A]ssociate [J]ustice to make the final orders that she made.[52]
69 Among other things, the first plaintiff thereafter submitted that there had been -
(a) 'a breakdown in the procedure required under the rules for service of a sealed summons upon a plaintiff to attend court';[53]
(b) 'effectively ... no hearing on the summons as amended';[54]
(c) 'a clear jurisdictional error' because the Summons 'had to be amended for this decision to have been handed down';[55] and
(d) error because r 24.05 is 'interpretative' only and did not enliven the jurisdiction of the Court, which, it was said, meant that the Summons had been 'entirely defective' and 'ought to have been dismissed'.[56]
70 Ground 2 is directed to her Honour's further and alternative determination that the first plaintiff's defaults were 'intentional and contumelious'. In substance, the first plaintiff submits that the finding was very serious and that there was a 'total absence of evidence' in support of it.[57]
71 The first plaintiff directed no specific written or oral argument to ground 3. Ground 3 appears to overlap with ground 2; at least in significant part.
72 Ground 4 is directed to an alleged 'finding' that the first plaintiff had 'no life interest' in the Premises.[58]
73 In address, the first plaintiff submitted that there was a 'circularity' and therefore error in her Honour's reasoning because -
... [t]o say that the effect, which is the dismissal of the proceedings, is final on the underlying cause and legal reason that would be used to support the outcome simply doesn't follow.[59]
74 To some extent, ground 5 relies upon the point sought to be advanced in respect of ground 4. That said, in oral argument, the first plaintiff sought to explain that ground 5 also concerns removal of the caveat. In that connection, he referred to authorities identified in his written submissions (in respect of ground 4) and submitted that 'none of that was considered here'.[60]
75 The first plaintiff's written submissions describe grounds 6 to 9 (inclusive) as restatements of his earlier complaints 'through the lens of procedural fairness'.[61]
76 In that connection, the first plaintiff essentially confirmed that his complaint is that there was no notice of what was ultimately decided.[62]
77 Neither the first plaintiff's written submissions nor arguments initially advanced in oral address were directed to ground 10, which concerns the order that the first plaintiff pay costs of the proceeding on an indemnity basis.
78 When queried, in reply, the first plaintiff confirmed that -
(a) his argument in respect of the costs order links back to his argument in respect of her Honour's finding that his defaults were 'intentional and contumelious'; and
(b) if the appeal were allowed, the costs order below would necessarily be set aside.[63]
79 Both in written submissions and oral argument, counsel for the mother essentially submitted that -
(a) none of the first plaintiff's grounds of appeal are made out; and
(b) the appeal should be dismissed with costs.
80 As I have noted, the first plaintiff appeals from orders made by Ierodiaconou AsJ on 31 July 2025 and states 10 grounds of alleged appealable error.
81 In those circumstances, it did not seem to be in dispute that the first plaintiff must presently demonstrate error on the part of the Associate Justice.[64]
82 That said, as I have noted, the first plaintiff described Perpetual as 'the guiding decision in this appeal'.[65]
83 It may be accepted that Perpetual refers to at least one legal principle of present relevance. However, I do not accept that the broader reasoning in Perpetual should otherwise be regarded as determinative of the outcome of this appeal. Among other things, as the first plaintiff accurately identified in argument, the 'factual matrix is different'. Also, as a solicitor, the first plaintiff correctly claims no need for assistance from the Court.
84 I should add that while a footnote in the first plaintiff's written submissions would seem to place reliance upon particular paragraphs of reasoning in Perpetual,[66] care should be taken with those paragraphs as they plainly concern an application there made under r 46.08 of the Rules. In the present instance, the first plaintiff brings an appeal, not an application under r 46.08 (or r 24.06(a)).[67]
85 That brings me to ground 1, in connection with which the first plaintiff advances several complaints.
86 As I have noted, much of that centres upon the fact that the Summons did not formally seek relief under r 24.01(c), which rule, of course, her Honour referred to and relied upon in primary support of the order dismissing the proceeding for want of prosecution.
87 As I have noted, in oral argument the first plaintiff elevated that submission to one in which he claimed that the Summons had not 'enlivened' the jurisdiction of the Court.
88 That submission is not clearly discernible in ground 1 of the notice of appeal, or in the relevant paragraphs of the first plaintiff's written submissions. Consequently, the mother did not address it in her submissions.
89 The first plaintiff also did not identify any authority in support of his elevated submission.
90 In any event, a moment's reflection reveals that the submission cannot be accepted.
91 It is commonly the case that in the course of managing and disposing of interlocutory applications or hearings the Court will exercise powers under the Rules (or the Civil Procedure Act 2010 (Vic)) that have not strictly been identified in any summons filed and served prior to the relevant hearing. Whether or not the Court should do so can be limited by the requirements of procedural fairness, but it is not ordinarily limited by any unavailability of jurisdiction or power.
(a) in general terms, the Court presently had jurisdiction because the plaintiffs brought the proceeding and the mother appeared in it;
(b) section 17(1A) of the Supreme Court Act 1986 (Vic) confers certain jurisdiction in the Court constituted by an associate judge;
(c) by r 77.01(1) of the Rules, subject to the limitations identified in r 77.02, an associate judge may exercise various powers and authorities under the Rules, including giving judgment in exercise of the Court's inherent jurisdiction;
(d) rules 46.02(1), 46.05(1) and 46.07(1) make it plain enough that the essential function of a summons is to give notice of an application to the person served with it (and, even if the person fails to attend at the hearing of the summons, that the Court may hear and determine the application if satisfied that the person was duly served);
(e) by r 36.01, the Court may, 'at any stage', order that a summons be amended in order that the real questions in controversy between the parties can be determined;[68]
(f) by r 2.01(1), a failure to comply with the Rules does not render a proceeding or any step taken or document in the proceeding a nullity;
(g) by r 2.04(1), the Court may dispense with compliance with any requirements of the Rules, either before or after the occasion for compliance arises; and
(h) by r 1.14(2), the Court may exercise any power under the Rules of its own motion.
93 In short, none of the above (which should not be taken to be exhaustive), would suggest that the Court lacks jurisdiction to grant relief pursuant to the Rules or in exercise of the inherent jurisdiction of the Court merely because such relief has not been identified specifically in an earlier summons.
(a) her Honour presently lacked jurisdiction;
(b) the Summons was 'defective';
(c) her Honour could not determine the application by reference to a power not specifically identified in the Summons; and
(d) anything presently turns upon whether or not the first plaintiff was served with an amended summons for which the mother had earlier obtained leave.
95 Nor, for much the same reasons, do I consider anything to turn upon the fact that certain actions or omissions had not yet occurred at the time that the Summons was filed and served. The relevant omissions occurred well prior to the hearing on 31 July 2025 and, perhaps subject only to the question of notice, it seems to me that her Honour was perfectly entitled to act upon them in determining whether the relief sought by the mother should be granted.
96 In the present circumstances, as I have sought to indicate, the only issue could have been one of notice.
97 In that regard, as I have noted, in his written submissions the first plaintiff disclaimed notice of 'such matters' and, in oral address, seemed to take issue with what he described as the mother's contentions concerning 'constructive notice'.[69]
(a) both the Consolidated affidavit and the mother's outline of submissions put the first plaintiff on actual notice that, at the hearing on 31 July 2025, the mother would seek relief pursuant to r 24.01(c) of the Rules;
(b) it is not in dispute that, by that point, the first plaintiff had failed to file a notice of trial despite the terms of the orders made by Irving AsJ on 13 May 2025 as well as the hearing notice issued by the Court;[70]
(c) as a solicitor, the first plaintiff must have understood the importance of those orders and documents; and
(d) nonetheless, the first plaintiff failed to appear at the hearing and, I might add, has not ever deposed to any or any adequate explanation for -
(i) not having complied with the orders made by Irving AsJ as well as the hearing notice issued by the Court; and
(ii) not having appeared at the hearing before Ierodiaconou AsJ on 31 July 2025.
99 The short point is that the first plaintiff was given clear and sufficient notice of exactly what his mother would be seeking and when. At least in the present instance, the fact that such an intention was notified in an affidavit and subsequent written submissions seems to me to be immaterial.
100 In my view, there was clear and sufficient notice and therefore no material denial of procedural fairness.
101 For completeness, as I have earlier noted, the first plaintiff also submitted that the Summons was 'defective' and ought to have been dismissed because r 24.05 of the Rules is only 'interpretative'.
24.05 Inherent jurisdiction
Nothing in this Order affects the inherent power of the Court -
(a) to dismiss any proceeding for want of prosecution; or
(b) to order that upon the failure of a party to do any act or take any step which under these Rules the party is required to do or take or to comply with an order that the party do any such act or take any such step the proceeding shall be dismissed or the defence struck out and that judgment may be entered or that there be judgment accordingly.
103 In the present instance, any debate concerning the character of r 24.05 is, at best, an unproductive distraction. In terms, the Summons quite clearly put the first plaintiff on notice that his mother would be seeking an order that his proceeding be dismissed for want of prosecution. In context, the reference to r 24.05 served to notify the first plaintiff that his mother would seek that the Court exercise its inherent power in order to do so.
104 It follows that I do not accept the submission that, in referring to r 24.05 of the Rules, the Summons was in any way 'defective' and so, for that reason, should have been dismissed.
Grounds 2 and 3: 'Intentional and Contumelious'
106 As noted in argument, ground 2 concerns the second, and alternative, basis upon which her Honour relied in determining that the proceeding should be dismissed for want of prosecution.[71]
107 It follows from what I have earlier said in respect of ground 1, that it is therefore strictly unnecessary to determine ground 2 (and therefore also ground 3).
108 That said, it may be acknowledged that it was serious to find that the first plaintiff's defaults were 'intentional and contumelious'.[72] However, contrary to the first plaintiff's submissions, it does not seem to me to be the case that there was 'no' or insufficient evidence available in support of that finding.
109 In that regard, her Honour referred specifically to the Consolidated affidavit to which I have earlier referred in some detail.
110 At the very least, the circumstances disclosed that -
(a) the first plaintiff was a solicitor;
(b) the first plaintiff could not have had (and seemingly did not claim) any difficulty in understanding the applicable Court orders and other procedural requirements;
(c) the first plaintiff's non‑compliance with Court orders had repeatedly stymied presentation of the proceeding for determination at trial and, ultimately, had moved Irving AsJ to make orders of an essentially peremptory kind; and
(d) the first plaintiff had repeatedly failed to give any sworn or affirmed explanation for his non‑compliance, including in respect of his non‑compliance with the orders of Irving AsJ.
111 In my view, the evidence amply justified her Honour's inference that the failures of the first plaintiff to comply with the orders of Irving AsJ, in particular, were intentional and contumelious.
112 I should, perhaps, add that the unusual circumstances of the case, to which I have earlier referred (and which seem likely to have motivated the mother repeatedly to seek that the Court make orders of a peremptory kind), were readily capable of lending a colour of contumely or contumacy to the first plaintiff's repeated actions and inactions.[73]
Grounds 4 and 5: finding of 'no life estate' and removal of the caveat
114 As I have noted, the first plaintiff contends that her Honour erred in finding that he never had a life interest in the Premises and, consequently, was said to have erred in ordering that the caveat should be removed.
115 The 'finding' that the first plaintiff had no life interest in the Premises is said to have been made by her Honour at paragraphs U and V of 'Other Matters' in the orders of 31 July 2025. Those paragraphs are extracted earlier in these reasons.
116 The short answer to those contentions is that -
(a) at paragraphs R, S and T, her Honour explained that the proceeding would be dismissed for want of prosecution and explained why that order would be (and was) made;
(b) at paragraph U, her Honour observed, in substance, and in my view correctly, that the 'central claim' in the proceeding had been that the first plaintiff had a 'life interest' in the Premises, but that dismissal of the proceeding for want of prosecution meant that there would no longer be a proceeding in which that 'claim' could be established;
(c) therefore, her Honour did not find - on the merits or otherwise - that the first plaintiff never had a life interest in the Premises;
(d) at paragraph V, her Honour explained further that the rights claimed in the proceeding had been the basis for the caveat, and that dismissal of the proceeding meant that the foundation for any further maintenance of the caveat had been removed;
(e) such reasoning was plainly correct, and did not involve any erroneous 'circularity' or conflation of cause and effect; and
(f) in light of the manner in which the application was determined, it was unnecessary for her Honour to address the principles applicable in applications of a quite different kind in which the continued maintenance of a caveat is addressed more directly on the merits.[74]
117 It follows that grounds 4 and 5 must be rejected.
118 As earlier explained, the first plaintiff was given clear and sufficient notice and there was no material denial of procedural fairness.
119 It follows that grounds 6, 7, 8 and 9 must be rejected.
120 As noted, the first plaintiff's submissions in respect of the order for indemnity costs of the proceeding emerged in oral reply.
(a) the primary aspect of the first plaintiff's argument linked back to his complaint in respect of her Honour's finding that his defaults had been 'intentional and contumelious';
(b) I have earlier determined that finding to have been made without error;
(c) the first plaintiff otherwise submitted that the costs order must be set aside if the appeal is allowed;
(d) the first plaintiff has not made out any of his other grounds of appeal; and
(e) it follows that his appeal will not be allowed on any of those grounds.
123 It light of the above, none of the first plaintiff's grounds of appeal are made out.
(a) the appeal must be dismissed;
(b) the first plaintiff should pay his mother's costs of the appeal on the standard basis to be assessed by the Costs Court in default of agreement.
125 Orders to that effect will accompany these reasons when published to the parties.
[3] AB E102-6. Remarkably, if that allegation were to be accepted, that would mean that the first plaintiff, who is a solicitor, had been party to what he seems freely now to describe as a 'sham'. If such findings came to be made, of course, it would seem to be at least possible that the first plaintiff could face the risk of a disciplinary complaint.
[30] In that regard, it was at least implicit in the plaintiff's arguments in respect of a notice to vacate dated 11 September 2024 that he remains resident at the premises: see, Transcript ('T') 1-2. See also Submissions of the First Plaintiff filed 3 October 2025 ('First plaintiff's appeal submissions') [1]-[3].
[38] AB F437 [41]-[42], [45]-[46].
[46] First plaintiff's appeal submissions (n 30); First defendant's outline of submissions filed 22 October 2025.
[47] The first plaintiff had essentially foreshadowed applications to receive the notice to vacate as 'further evidence' and, thereupon, seek a stay on her Honour's orders as well as an order restraining the 'defendants from furthering any application at VCAT ... pending final determination of the matter': First plaintiff's appeal submissions (n 30) [1]-[10], [28]-[30].
[49] [2025] VSC 531 ('Perpetual'). The first plaintiff also refers to Re IPO Wealth Holdings No 2 Pty Ltd (in liq); Mawhinney v Giasoumi [2022] VSC 199, [54]-[59].
[50] First plaintiff's appeal submissions (n 30) [13]. See also T3, 11-12.
[51] I note that her Honour determined the matter prior to the coming into force of the Supreme Court (General Civil Procedure) Rules 2025 (Vic). There is no, or no material difference, between the relevant rules in force at the different times.
[57] First plaintiff's appeal submissions (n 30) [22]-[23]. See also T9-10.
[60] T11. Cf First plaintiff's appeal submissions (n 30) [25], footnote 12.
[61] First plaintiff's appeal submissions (n 30) [27].
[62] T12. Cf First plaintiff's appeal submissions (n 30) [27].
[64] Cf Perpetual (n 49) [81]-[82].
[66] First plaintiff's appeal submissions (n 30) footnote 6; Perpetual (n 49) [108]-[120].
[67] Even if the first plaintiff had made such an application, it seems to me that it must necessarily have failed. At the very least, the first plaintiff has not deposed to any explanation for his failure to appear on 31 July 2025. Cf Perpetual (n 49) [109]-[112].
[68] Cf Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('Rules'), r 46.05.1(4).
[72] Cf Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Haskins & Sells [1999] 3 VR 863, 872. See further, Knorr v Commonwealth Scientific and Industrial Research Organisation (CSIRO) [2014] VSCA 84, [53]-[55]; Sullivan v Greyfriars Pty Ltd [2015] VSCA 196, [21]-[24].
[73] Cf Re Jokai Tea Holdings [1993] 1 All ER 630, 641.
[74] Cf Bradto Pty Ltd v State of Victoria [2006] VSCA 89; (2006) 15 VR 65; Piroshenko v Grojsman [2010] VSC 240; (2010) 27 VR 489; Carbon Black Lab Pty Ltd v Launer [2015] VSCA 126.
Welner
Welner [2025] VSC 719
(2006) 15 VR 65
(2010) 27 VR 489