Brakatselos v ABL Nominees Pty Ltd - [2012] VSCA 231

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0133
PETER BRAKATSELOS	Applicant
v
ABL NOMINEES PTY LTD (ACN 106 756 521) (in its capacity as trustee of the Lighthouse Warehouse Trust No 8 (Environinvest Finance)) & ORS	First Respondent
S APCI 2012 0134
TERENCE CLANCY	Applicant
v
ABL NOMINEES PTY LTD (ACN 106 756 521) (in its capacity as trustee of the Lighthouse Warehouse Trust No 8 (Environinvest Finance)) & ORS	First Respondent
S APCI 2012 0132
PHILIP MEYER	Applicant
v
PRIMARY YIELD FINANCE PTY LTD (ACN 110 168 833) (In Liquidation) (Receivers and Managers Appointed) & ORS	First Respondent

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JUDGES:	NETTLE, REDLICH JJA and DAVIES AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 September 2012
DATE OF JUDGMENT:	14 September 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 231
JUDGMENT APPEALED FROM:	[2012] VSC 265 (Pagone J).

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PRACTICE AND PROCEDURE – Self-executing order – Defence struck out for non-compliance – Application to set aside or vary self-executing order refused by Associate Justice – Appeal – Applicants seek special leave to rely on new material – Supreme Court (General Civil Procedure) Rules 2005 r 77.06 – Meaning of ‘special leave’ – Failure to provide satisfactory explanation for non-compliance – Brownport Management v Aquatec 21 Pty Ltd [2002] VSC 396 – Farrow Mortgage Services Pty Ltd v Moguls Investments Pty Ltd – (Unreported, 22 October 1992, Supreme Court of Victoria, Vincent J) – Application for leave to appeal against refusal to set aside self-executing order – Circumstances in which a self-executing order should be set aside –Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr M J Galvin	Clamenz Evans Ellis Lawyers
For the First Respondents	Mr C M Scerri QC with Mr O Bigos	Allens

NETTLE JA:

I invite my brother Redlich to deliver the first judgment.

REDLICH JA:

By summonses filed 12 July 2012, the three applicants seek leave to appeal against the orders of Pagone J in the Supreme Court of Victoria made on 4 July 2012, dismissing the applicant’s appeal from self-executing orders made by Mukhtar AsJ on 10 May 2012.

According to the written submissions, the primary issue before the trial judge was whether His Honour erred in refusing the applicants ‘special leave’ to file and rely upon additional affidavits pursuant to r 77.06(7)(b) of the Supreme Court (General Civil Procedure) Rules 2005. The applicants submitted that by refusing to grant ‘special leave’, his Honour wrongly excluded evidence that ought to have been taken into account in determining the principal question of whether the self-executing order of Mukhtar AsJ should be set aside.

This dispute arises out of investments made by the applicants in an agricultural managed investment scheme called the Environinvest Eucalypt Project 1999 and 2000. The trial date for this proceeding was set down for 16 July 2012. On 10 May 2012, Mukhtar AsJ made sets of orders in each of the applicant’s proceedings requiring the applicants’ solicitors:

a) to serve on the respondents’ solicitors by 17^th

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.

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Details

Case: [2012] VSCA 231
Decision Date: 14 September 2012

CaseChat Overview and Summary

The case of Brakatselos v ABL Nominees Pty Ltd involved the applicant, Brakatselos, who sought special leave to appeal against the refusal of an application to set aside a self-executing order. The order had been made after the respondents, ABL Nominees Pty Ltd, successfully argued that Brakatselos had failed to comply with procedural requirements by not filing a defence within the required time. The application to set aside the order was initially refused by an Associate Justice. The applicant then sought special leave to rely on new material and appeal against the refusal to set aside the self-executing order.

The primary legal issues the court was required to decide were whether the applicant could rely on new material and whether the refusal to set aside the self-executing order was correct. The court had to interpret the meaning of ‘special leave’ under Supreme Court (General Civil Procedure) Rules 2005 r 77.06 and consider the circumstances in which a self-executing order should be set aside. The court also had to consider the applicants' failure to provide a satisfactory explanation for their non-compliance and whether it was appropriate to grant leave to appeal in these circumstances.

The court concluded that the applicants had failed to provide a satisfactory explanation for their non-compliance and that the refusal to set aside the self-executing order was correct. The court found that the meaning of ‘special leave’ did not permit the applicants to rely on new material and that the circumstances did not warrant setting aside the self-executing order. The court further noted that the refusal to set aside the order was consistent with previous cases such as Brownport Management v Aquatec 21 Pty Ltd and Farrow Mortgage Services Pty Ltd v Moguls Investments Pty Ltd. The court ultimately refused the application for leave to appeal.

The court dismissed the appeal and refused the applicants leave to appeal against the refusal to set aside the self-executing order. This decision reinforces the importance of adhering to procedural requirements in litigation and the limited circumstances in which a self-executing order may be set aside. The court's refusal to grant leave to appeal highlights the stringent criteria that must be met for such leave to be granted.

Orders