JUDGE:	DERHAM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	3 October 2014
DATE OF JUDGMENT:	29 May 2015
CASE MAY BE CITED AS:	Advaland Pty Ltd v Bitcon and Anor
MEDIUM NEUTRAL CITATION:	[2015] VSC 235

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ADMINISTRATIVE LAW – Extension of time to apply for leave to appeal VCAT decision – Leave to appeal – Whether adequate explanation for the delay in applying – Whether questions of law – Challenges to findings of fact – Whether findings of fact open on the evidence – Whether real or significant argument that VCAT fell into error – Explanation for the delay in applying for leave to appeal not adequate – No real or significant argument that VCAT fell into error in a way significant to the ultimate finding – Leave to appeal out of time refused – Victorian Civil and Administrative Tribunal Act 1998, ss 148(1) and 148(5).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Clarke	M. P. Lanza Lawyers
For the Defendant	Mr A Kirby	Meerkin & Apel, Lawyers

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Summary of Conclusions................................................................................................................. 2

Factual Background........................................................................................................................... 2

The Battle of the Affidavits.............................................................................................................. 4

Mr Crespin’s Affidavit of 8 May 2014........................................................................................ 4
Mr Pergl’s Affidavits and Mr Crespin’s Responses................................................................. 5

Extension of Time Application...................................................................................................... 10

Applicable Principles................................................................................................................. 10
Advaland’s Contentions............................................................................................................. 11
Consideration.............................................................................................................................. 13

Leave to Appeal................................................................................................................................ 16

Applicable Principles................................................................................................................. 16
The Questions of Law Advanced by the Plaintiff.................................................................. 18
Are Questions of Law Arguable?............................................................................................. 22
Post-Contractual Conduct................................................................................................ 22
Fragmentation.................................................................................................................... 25
Challenges to Findings of Fact........................................................................................ 25
The Expert Evidence......................................................................................................... 27

Conclusion......................................................................................................................................... 29

HIS HONOUR:

Introduction

The plaintiff (‘Advaland’) applies by originating motion filed 8 May 2014 for –

(a) An order under s 148(5) of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) extending the time for leave to appeal the orders and decision of VCAT made on 4 February 2014 in proceeding no. D700/2013; and

(b) If leave is granted, an order under s 148(1) of the VCAT Act granting it leave to appeal those orders and that decision.

On 21 July 2014, I ordered that Advaland provide security for the defendants’ costs of the proceeding up to and including the application for leave to appeal in the sum of $15,000.00. I also made orders for the plaintiff to provide the defendants with an electronic version of the audio recording and the transcript of the hearing held on 13-17 January 2014 at the Tribunal, and for the filing and service of further affidavits and an amended draft notice of appeal (one which complied with Rule 4.11 of the Supreme Court (Miscellaneous Civil Proceeding) Rules 2008,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Advaland Pty Ltd v Bitcon

Details

AGLC: Advaland Pty Ltd v Bitcon [2015] VSC 235
Case: [2015] VSC 235
Decision Date: 29 May 2015

CaseChat Overview and Summary

Advaland Pty Ltd, the appellant, sought to appeal a decision made by the Victorian Civil and Administrative Tribunal (VCAT). The respondent, Bitcon, opposed the application for leave to appeal on the grounds that it was filed beyond the statutory time limit. The Court of Appeal was tasked with determining whether Advaland's application for leave to appeal should be permitted despite the delay and whether the appeal had merit.

The court had to decide whether Advaland provided an adequate explanation for the delay in applying for leave to appeal. Additionally, the court had to determine whether the appeal raised questions of law and whether any challenges to findings of fact presented a real or significant argument that VCAT fell into error. The court also needed to consider whether the findings of fact were open on the evidence and whether there was a real or significant argument that VCAT fell into error in a way significant to the ultimate finding.

The Court of Appeal held that Advaland's explanation for the delay in applying for leave to appeal was not adequate. The court found that there was no real or significant argument that VCAT fell into error in a way significant to the ultimate finding. Furthermore, the findings of fact were considered open on the evidence, and the challenges to those findings did not present a compelling argument that VCAT erred in a manner that would warrant an out-of-time appeal. Consequently, the Court of Appeal refused Advaland's application for leave to appeal, citing sections 148(1) and 148(5) of the Victorian Civil and Administrative Tribunal Act 1998.

The court's final orders were that Advaland's application for leave to appeal the VCAT decision was dismissed, and the appeal was out of time. No further appeal was permitted on the grounds of the late application for leave.

Orders