LIMITATION OF ACTIONS – Declaratory relief – Whether claims for pure declaratory relief barred under Limitation of Actions Act 1958 – Whether claims barred under s 5(1)(a) – Whether claims ‘founded on tort’ – Whether facts alleged comprise tort of injurious falsehood – Elements of injurious falsehood not alleged – Whether facts alleged comprise cause of action based on generalised wrongful conduct – Whether cause of action based on generalised wrongful conduct ‘founded on tort’ – No claim ‘founded on tort’ – Claims not barred under s 5(1) – Claims not otherwise barred under ss 5(8) or 21 – No error – Leave to appeal granted – Appeal dismissed – Limitations of Actions Act 1958, ss 5(1)(a), (2), (8), 21; Supreme Court Act 1986, s 36; Supreme Court (General Civil Procedure) Rules 2015, r 23.05; Harris v Gas & Fuel Corporation of Victoria [1975] VR 619; Judamia v State of Western Australia (Supreme Court of Western Australia Full Court, Malcolm CJ, Rowland and Franklyn JJ, 1 March 1996); Waddington v State of Victoria [2018] VSC 746; Woodeson v Credit Suisse (UK) Limited [2018] EWCA Civ 1103; P & O Nedlloyd BV v Arab Metals Co [2005] 1 WLR 3733, considered.
EQUITY – Enforceability of gift – Whether transfer of shares for no consideration valid in equity – Whether donor completed all actions required to effect transfer – Evidence of required actions deficient or non-existent – No error – Leave to appeal refused – Corin v Patton (1990) 169 CLR 540, applied.
ESTOPPEL – Estoppel by acquiescence or inaction – Whether respondents estopped from challenging validity of share transfer – Whether acquiescence to transfer by failure to object to actions taken by company adverse to interests as shareholders – Alleged estoppel unsupported by facts – Whether promissory estoppel by inaction – No relevant relationship between parties to engage principles of promissory estoppel – No evidence of relevant knowledge, inducement or reliance – No error – Leave to appeal refused – Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, applied.
CORPORATIONS – Rectification of ASIC register – Whether judge erred in ordering ASIC to rectify register under s 1322(4)(b)…
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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AGLC
Cappelleri v Cappelleri [2024] VSCA 173
Case
[2024] VSCA 173
Decision Date
CaseChat Overview and Summary
In the matter of Cappelleri v Cappelleri, the respondent sought various forms of declaratory relief from the court. The appellant contested the validity of the respondent's claims, raising issues concerning limitation of actions, equity, estoppel, and civil procedure. The Court of Appeal examined whether the respondent's claims were barred by the Limitation of Actions Act 1958, specifically under sections 5(1)(a) and 21, and whether they were "founded on tort". The Court found that the respondent's claims were not barred as they did not constitute a claim founded on tort. Additionally, the Court assessed the enforceability of a gift of shares, the applicability of estoppel by acquiescence or inaction, and whether the court could grant relief on a new issue raised on appeal. The Court ruled that the transfer of shares was valid in equity, that no estoppel applied, and that it was not in the interests of justice to re-open the issue of the withdrawal of a concession on appeal. Furthermore, the Court considered whether the judge had erred in ordering the rectification of the ASIC register under the Corporations Act 2001, finding no such error.
The Court of Appeal considered the nature of declaratory relief and its availability under statute and court rules. It was noted that declaratory relief is a statutory power when exercised by a court of law, and it does not require the applicant to have a subsisting cause of action or a right to other relief. The Court emphasised that the power to grant declaratory relief is discretionary and must be directed to the determination of a legal controversy, where the applicant has a real interest in the relief, and the relief may be refused if it will not produce any foreseeable consequence for the parties. The Court also considered the concept of a "legal controversy" and its boundaries, finding that the respondent's claims met the criteria for declaratory relief. The Court further ruled that the transfer of shares was valid in equity, that no estoppel applied, and that it was not in the interests of justice to re-open the issue of the withdrawal of a concession on appeal. Lastly, the Court found no error in the judge's order to rectify the ASIC register under the Corporations Act 2001.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Those statutory reforms found their way into legislation and court rules in a number of Australian states, including Victoria. The Supreme Court Act 1986 provides, in s 36:36 Declaratory judgmentsA proceeding is not open to objection on the ground that a merely declaratory judgment is sought, and the Court may make binding declarations of right without granting consequential relief. Rule 23.05 of the Supreme Court (General Civil Procedure) Rules 2015 (the ‘Rules’) provides:No proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether or not any consequential relief is or could be claimed. The additional words ‘or could be’ appearing in the rule are important. They emphasise — as they were intended to emphasise — that the power to grant declaratory relief is available not merely where consequential relief is not claimed in fact, but also where consequential relief could not be claimed.[30][30]Ibid [19-025]. A number of propositions flow from this history and these developments. First, the power to grant declaratory relief is no longer exclusively equitable. When exercised by a court of law, it is a statutory power.[31][31]Chapman v Michaelson [1909] 1 Ch 238, 242 (Cozens-Hardy MR, Fletcher Moulton LJ agreeing at 242, Farwell LJ agreeing at 242–3). Secondly, the party applying for declaratory relief need not have a subsisting cause of action or a right to some other relief.[32][32]Guaranty Trust Co of New York v Hannay & Co [1915] 2 KB 536, 572 (Bankes LJ); Patton v Attorney‑General for the State of Victoria [1947] VLR 257, 272 (Herring CJ); Gouriet v Union of Post Office Workers [1978] AC 435, 501 (Lord Diplock) (‘Gouriet’). Thirdly, the power to grant declaratory relief is discretionary. While it is not possible or desirable to fetter the manner of its exercise by the application of rules, the power is nonetheless ‘confined by the considerations which mark out the boundaries of judicial power’.[33] Accordingly, and relevantly to the present case, the relief must be directed to the determination of a legal controversy, the person seeking it must have a real interest in the relief, and the relief may be refused if it will not produce any foreseeable consequence for the parties.[34][33]Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 581–2 (Mason CJ, Dawson, Toohey and Gaudron JJ); [1992] HCA 10 (‘Ainsworth’). See also Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421, 437–8 (Gibbs J); [1972] HCA 61.[34]Ainsworth (1992) 175 CLR 564, 582 (Mason CJ, Dawson, Toohey and Gaudron JJ). See also Director of Consumer Affairs Victoria v Mecon Insurance Pty Ltd [2016] VSC 42, [22] (Elliott J) and the cases there cited. The concept of a ‘legal controversy’ might best be understood by considering what is not a legal controversy. Sometimes, the requirement is expressed as a ‘justiciable controversy’ which is, perhaps, a shorthand way of stating the proposition that the exercise of the power marks out the boundaries of judicial power. For example, in Mutasa v Attorney-General,[35] a judge refused to declare that the Crown had failed to protect the plaintiff, a British subject, when, upon the colony of Southern Rhodesia declaring its independence, the plaintiff was arrested. The judge found that the Crown’s duty to protect its citizens was ‘political’ — in effect a moral one — and not a legal duty that could be enforced in a court of law.[36][35][1980] QB 114.[36]Ibid 120, 123 (Boreham J).