De Lutis v Rolfe - [2023] VSCA 323

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0108

PAUL DE LUTIS	Applicant
v
JAMES ROLFE	Respondent

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JUDGES:	KENNEDY JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	18 December 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 323
JUDGMENT APPEALED FROM:	Rolfe v De Lutis (County Court of Victoria, Judge Macnamara, 3 September 2021)

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PRACTICE AND PROCEDURE – Application for leave to appeal decision of County Court to dismiss summons seeking summary judgment – Application for leave to appeal adjourned pending lifting of stay of County Court proceeding – No subsequent substantive steps taken in relation to application for leave to appeal – County Court proceeding later dismissed for want of prosecution – Applicant accepts that application for leave to appeal should be dismissed – Application for leave to appeal dismissed for want of prosecution.

Supreme Court (General Civil Procedure) Rules 2015, r 64.46(1)(d).

Efektiv Pty Ltd v Madgwicks (a firm) [2022] VSCA 72, referred to.

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Counsel
Applicant:		No attendance
Respondent:		No attendance
Solicitors
Applicant:	BSP Lawyers
Respondent:	T F Grundy Lawyer

KENNEDY JA:

The application for leave to appeal in this case seeks to challenge a decision of a County Court judge that the defendant’s[1] application for summary judgment should be dismissed and that the plaintiff be granted leave to file and serve an amended statement of claim. The judge also granted a stay of the proceeding until such time as the plaintiff’s former trustees in bankruptcy had assigned the causes of action to the plaintiff which he sought to rely upon (‘stay order’).
[1]I will use the terms plaintiff and defendant in these reasons, to describe the respondent and applicant, respectively.
On 11 August 2022, this Court, by consent, ordered that the defendant’s application for leave to appeal be adjourned to a date to be fixed pending the lifting of the stay order. However, no assignment ever took place and no substantive steps have been taken in relation to this application since August 2022. The County Court has also now made an order (on 17 August 2023) dismissing the (County Court) proceeding.
In the circumstances, the Registrar has referred the application for leave to appeal to me to determine whether an order should be made that the proceeding be dismissed for want of prosecution. The defendant consents to the making of such an order.
For reasons expressed below, I have determined that the application will be dismissed for want of prosecution.

Background prior to issue of this application

The plaintiff was the director of James Rolfe Transport (Vic) Pty Ltd (‘JRT’) which operated a shipping container business at certain premises in Yarraville (‘the premises’). JRT leased the premises from Glodale Pty Ltd (‘Glodale’), another company of which the plaintiff was a director.
Following Glodale’s default on a loan from Investec Bank Australia Ltd (‘Investec’),[2] Investec, (as mortgagee in possession) sold the premises by auction to Jeans Team Pty Ltd (‘Jeans’) on 20 March 2003. The defendant is…

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 De Lutis v Rolfe

Details

AGLC: De Lutis v Rolfe [2023] VSCA 323
Case: [2023] VSCA 323
Decision Date: 18 December 2023

CaseChat Overview and Summary

The applicant, De Lutis, sought leave to appeal a decision of the County Court dismissing a summons for summary judgment. The proceedings were before the Supreme Court of Victoria, which was required to determine whether the applicant's application for leave to appeal should proceed or be dismissed for want of prosecution. The applicant had made an application for leave to appeal the County Court's decision, which was adjourned pending the lifting of a stay of the County Court proceeding. However, no subsequent substantive steps were taken in relation to the application for leave to appeal. The County Court proceeding was later dismissed for want of prosecution. The applicant accepted that the application for leave to appeal should be dismissed.

The primary legal issue before the court was whether the applicant's application for leave to appeal should be dismissed for want of prosecution, pursuant to Supreme Court (General Civil Procedure) Rules 2015, r 64.46(1)(d). The court considered the circumstances of the case, including the lack of substantive steps taken by the applicant in relation to the application for leave to appeal, and the dismissal of the County Court proceeding for want of prosecution. The court also referred to the decision in Efektiv Pty Ltd v Madgwicks (a firm) [2022] VSCA 72, which held that an application for leave to appeal could be dismissed for want of prosecution where there had been no substantive steps taken towards the appeal for an unreasonable length of time.

In determining the matter, the court found that the applicant's application for leave to appeal should be dismissed for want of prosecution. The court noted that there had been no substantive steps taken by the applicant in relation to the application for leave to appeal, and that the County Court proceeding had been dismissed for want of prosecution. The court held that the applicant's acceptance that the application for leave to appeal should be dismissed was a relevant consideration, and that the application should be dismissed in the interests of justice. The applicant's application for leave to appeal was accordingly dismissed.

The court made no further orders.

Orders