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Cressy v Johnson & Ors (No 3) [2009] VSC 52 (25 February 2009)

Cressy v Johnson & Ors (No 3) [2009] VSC 52 (25 February 2009)

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Published by: James Johnson on Jan 05, 2010
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Supreme Court of Victoria
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[2009] VSC 52
Cressy v Johnson (No 3) [2009] VSC 52 (25 February 2009)
Last Updated: 25 February 2009
Plaintiff andHAROLD JAMES JOHNSONDefendant
First Defendant by CounterclaimandDAVID HANLONSecond Defendant by CounterclaimandHARWOOD ANDREWS PTY LTD(ABN 98 076 868 034)Third Defendant by Counterclaim
---JUDGE:KAYE JWHERE HELD:MelbourneDATES OF HEARING:2-5, 8-12 December 2008; 5 February 2009; 9-11, 13, 16, 17February 2009DATE OF JUDGMENT:25 February 2009CASE MAY BE CITED AS:
v Johnson (No. 3)MEDIUM NEUTRALCITATION:[2009] VSC 52---PROPERTY – Application for adjustment of property interests under Part IX of the 
(Vic) – Whether parties in a domestic relationship – Assessing contributions – Financial and non-financialcontributions – Constructive trust – Counterclaims for damages for trespass to goods, lodging caveat and abuseof process.---APPEARANCES:CounselSolicitorsFor the Plaintiff and FirstDefendant by CounterclaimMr G DevriesBerry Family LawFor the Defendant and Plaintiff byCounterclaimMr H J Johnson appeared in personFor the Second and ThirdDefendants by CounterclaimMs R SofroniouLander & Rogers
HIS HONOUR:1 In these proceedings, the plaintiff makes a claim against the defendant, under Part 9of theProperty Law Act 1958 (Vic), arising from a domestic relationship which she alleges she had with the defendant betweenSeptember 1998 and May 2007. The plaintiff’s claim is based on the acquisition of a number of properties in thename of the defendant during and after the conclusion of the relationship. Alternatively, the plaintiff claims thatthe defendant holds the properties, purchased in his name, on a constructive trust on behalf of herself and thedefendant. The two claims by the plaintiff are made on the basis of contributions, both financial and non-financial, which the plaintiff alleges that she made to the relationship and to the properties for the benefit of herself and the defendant.2 In particular, the plaintiff’s claims are based on the acquisition by the defendant of seven properties during or at the conclusion of the relationship. Those properties are as follows:(1) 2 Dorrington Street, Point Cook.(2) 10 Hawkeshurst Court, Hoppers Crossing.
(3) 12 Lisa Court, Hoppers Crossing.(4) 7 Inverloch Drive, Point Cook.(5) 166 Queen Street, Altona.(6) Unit 9, 2 Gibson Street, East Caulfield.(7) 7A Endeavour Street, Torquay.3 In response to the plaintiff’s claim, the defendant has put in issue the existence of the domestic relationship between himself and the plaintiff, and the duration of any such relationship which might have existed betweenthem. He has also put in issue the plaintiff’s allegations as to the contributions which she says she had made tothe relationship and to the properties. In addition, the defendant has brought a counterclaim against the plaintiff.He joined David Hanlon, a solicitor as the second defendant to the counterclaim, and Harwood Andrews Pty Ltd(“Harwood Andrews”), a firm of solicitors of which Mr Hanlon is a member, as the third defendant to thecounterclaim.4 By his counterclaim the defendant has pleaded four causes of action, namely – (1) A cause of action based on an agreement which he says he entered into with the plaintiff for the occupation by the plaintiff of the Point Cook properties between March 2003 and June 2006, and the Altona property between June 2006 and November 2007. The defendant claims damages against the plaintiff arising out of alleged fraudulent representations by the plaintiff which he claims induced him to enter into the agreement, and,alternatively, on alleged breaches by the plaintiff of the terms of the agreement.(2) In paragraphs 15 to 21 of the counterclaim, the defendant claims damages against the plaintiff arising out of acaveat number AF085952B lodged by the plaintiff on 8 May 2007 over each of the properties (except theTorquay property) referred to in paragraph 2 above.(3) In paragraphs 22 to 26 of the counterclaim, the defendant claimed damages against Mr Hanlon, and further alternatively Harwood Andrews, and (it appears) against the plaintiff, arising out of a caveat number AF066328Dlodged by Harwood Andrews on 9 May 2007 over the title to the Altona property.(4) In paragraphs 27 to 33 of the counterclaim, the defendant claims that between January 1995 and November 2007 the plaintiff stole personal and financial records of the defendant, two mobile phones of the defendant, andother items belonging to the defendant. He also claimed that Mr Hanlon, and further alternatively HarwoodAndrews, were “intimately involved” in burglaries and thefts committed by the plaintiff on 16 November 2007.It is further alleged that Mr Hanlon and Harwood Andrews acted maliciously in subpoenaing the documents,recovered by the Victorian police from the plaintiff, and causing them to be lodged in the Federal Magistrates’Court of Melbourne.
The course of proceedings
5 The trial of the proceeding commenced before me on 2 December 2008. The plaintiff was represented by Mr GDevries of counsel. The defendant appeared in person. Ms R Sofroniou of counsel represented the second andthird defendants by counterclaim.6 At the outset of the proceeding, Mr Devries submitted that I should appoint a litigation guardian under Rule15.01 of the Rules of the Supreme Court to conduct the proceeding on behalf of the defendant. He called Mr D

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