David James Wardel - [2013] HCASL 116

AGRICULTURAL AND RURAL FINANCE PTY LIMITED

DAVID JAMES WARDEL & ORS
[2013] HCASL 116
S358/2012

The applicant seeks special leave to appeal against orders of the Court of Appeal of the Supreme Court of New South Wales (Campbell and Barrett JJA and Sackville AJA) allowing an appeal against a decision of the Equity Division of the Supreme Court of New South Wales (Einstein J).
The applicant was a financier of two tax-effective prescribed investment schemes. The respondents were investors in those schemes. Both schemes terminated early and the applicant made demands for the repayment of its loans to the respondents.
The applicant commenced proceedings in the Supreme Court seeking the recovery of moneys from investors who had failed to repay their loans in response to the applicant's demands.
On 9 June 2011, the Supreme Court gave judgment for the applicant against each of the respondents, who were found liable to repay their loans. The respondents appealed against that decision to the Court of Appeal.
On 30 April 2012, the Court of Appeal allowed the appeal and set aside the judgments below against each respondent. The Court of Appeal remitted the matter to the Equity Division for further hearing on certain defences that had been struck out.
On 30 November 2012, the Court of Appeal made further orders for restitution of the judgment debts and loans that had been paid by the respondents to the applicant pending determination of the appeals. The applicant contends that the Court of Appeal erred in finding that the respondents had a right to restitution for payment of the judgment debts, which had been later set aside.
This application concerns questions of practice and procedure. An appeal to this Court would not enjoy sufficient prospects of success to warrant a grant of special leave to appeal.
Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

K.M. Hayne
26 June 2013

S.M. Crennan

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.

Keep reading for free

Create a free CaseChat account to read David James Wardel and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] HCASL 116
Decision Date

CaseChat Overview and Summary

In the matter of Agricultural and Rural Finance Pty Limited versus David James Wardel and others, the applicant, a financier of two tax-effective prescribed investment schemes, sought special leave to appeal against orders made by the Court of Appeal of the Supreme Court of New South Wales. The applicant had initially been successful in proceedings against investors in the schemes who had failed to repay their loans. However, the Court of Appeal subsequently allowed an appeal by the respondents, setting aside the judgments and remitting the matter to the Equity Division for further hearings on certain defences. The Court of Appeal also ordered restitution of the judgment debts and loans that had been paid by the respondents to the applicant pending determination of the appeals.

The central legal issue was whether the Court of Appeal was correct in finding that the respondents had a right to restitution of the payment of the judgment debts, which had been later set aside. The applicant argued that the Court of Appeal erred in this regard. The application raised questions of practice and procedure and the Court needed to determine if an appeal to it would enjoy sufficient prospects of success to warrant a grant of special leave to appeal.

The Court concluded that the appeal did not have sufficient prospects of success. The Court of Appeal had correctly exercised its discretion in ordering restitution and the applicant's contention that the Court of Appeal erred was without merit. Accordingly, the Court dismissed the application for special leave to appeal and ordered the applicant to pay the costs of the application.

Orders