Chamakala v 7-Eleven Stores Pty Ltd - [2010] VSCA 10

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3853 of 2009

THOMAS LIUKOSE CHAMAKALA & ANOR
	Applicants
v
7-ELEVEN STORES PTY LTD (ACN 005 299 427)	Respondent

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JUDGES:	BONGIORNO JA and HANSEN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 February 2010
DATE OF JUDGMENT:	5 February 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 10

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PRACTICE AND PROCEDURE — County Court — Judgment — Extension of time to appeal — Subsequent costs order — Extension of time to appeal and leave to appeal — Stay of execution of costs order — Applications refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr MSR Clarke	Chadwicks
For the Respondent	Mr SR Horgan SC	Slater & Gordon

BONGIORNO JA:

I will ask Hansen AJA to give the first judgment.

HANSEN AJA:

This application by summons filed on 18 September 2009 seeks:

(a)Pursuant s 74(2A) of the County Court Act 1958, an extension of time in which to appeal against the orders of Judge Jenkins made in the County Court on 27 March 2009, that judgment be entered for the defendant and that the proceeding be otherwise dismissed;
(b)Pursuant to r 64.03(3), an extension of time in which to seek leave to appeal against costs orders of Judge Jenkins made on 4 August 2009, and, pursuant to s 74(2E) of the County Court Act 1958, leave to appeal against those orders; and
(c)A stay of execution of the costs orders pending determination of the appeal.

The subject proceeding was instituted by four plaintiffs, three being individual persons and the fourth a company called JMJ Traders Pty Ltd. The four individuals had formed JMJ Traders for the purpose of purchasing a 7-Eleven franchise in Sunbury, which JMJ did by entering into an agreement with the defendant, 7-Eleven Stores Pty Ltd, in August 2004.

Relying on a series of representations alleged to constitute a contravention of s 52 of the Trade Practices Act 1974 and s 9 of the Fair Trading Act 1999, the plaintiffs claimed damages. As to the three individuals, the statement of claim alleged that as a consequence of the representations, they dissolved their partnership in JMJ Traders, sold the Sunbury store and suffered loss and damage. As to JMJ Traders, the statement of claim claimed $556.80 as a balance owing.

Two of the individuals accepted an offer of compromise prior to trial. The remaining individual and J & J Traders continued the proceeding and they are the present applicants.

The proceeding was tried by Judge Jenkins over four days in October 2008. Her Honour reserved her decision and gave judgment on 27 March 2009. Her Honour dismissed the proceeding and reserved the question of costs. In her reasons, expressed thoroughly and with care, her Honour rejected the plaintiff’s case at every level. In summary, for reasons she detailed, she was not satisfied on the balance of probabilities that:

(a)there was any evidentiary basis for the alleged representations;
(b)any such representations were misleading or deceptive;
(c)there was any correlation…

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: [2010] VSCA 10
Decision Date: 5 February 2010

CaseChat Overview and Summary

The plaintiff in Chamakala v 7-Eleven Stores Pty Ltd sought an extension of time to appeal against the County Court's judgment, which had been issued in favour of the defendant. The plaintiff also sought an order for costs following the appeal. The defendant opposed both applications. The court had to determine whether the plaintiff's application for an extension of time to appeal was made within the required time frame, and if not, whether there were any exceptional circumstances that justified an extension. The court also had to consider whether the plaintiff's application for costs following the appeal was justified, and whether the defendant's opposition to the application for an extension of time to appeal should be stayed until the appeal was determined.

The court found that the plaintiff's application for an extension of time to appeal was not made within the required time frame and that there were no exceptional circumstances that justified an extension. The court also found that the plaintiff's application for costs following the appeal was not justified, and that the defendant's opposition to the application for an extension of time to appeal should not be stayed until the appeal was determined. The court refused both applications, and ordered that the plaintiff pay the defendant's costs of the applications. The court held that the plaintiff's applications were an abuse of process and that the defendant was entitled to costs on an indemnity basis.

In summary, the court found that the plaintiff's applications were not justified and that the defendant was entitled to costs. The court refused both applications, and ordered that the plaintiff pay the defendant's costs of the applications on an indemnity basis. The court held that the plaintiff's applications were an abuse of process and that the defendant was entitled to costs on an indemnity basis.

Orders