Legal Research
Cases
Devon v Capital Finance Australia Ltd

Devon v Capital Finance Australia Ltd

Case [2014] VSCA 73 15 April 2014

Civil Litigation & Procedure

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2013 0172

KATHLEEN LINDA DEVON

CAPITAL FINANCE AUSTRALIA LTD

---

JUDGES	WHELAN and SANTAMARIA JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	27 February 2014
DATE OF JUDGMENT	15 April 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 73
JUDGMENT APPEALED FROM	[2013] VCC 1252 (Judge Cosgrave)

---

PRACTICE AND PROCEDURE – Whether defence was raised on the pleadings or at trial – Whether new defence may be raised on appeal – Principles relating to when a new point can be raised on appeal – When a new trial will be ordered on an issue of fact not litigated at trial

---

Appearances:	Counsel	Solicitors
For the Appellant	Mr A P Rodbard-Bean with Ms S J Varney	In person
For the Respondent	Mr A T Schlicht	Koroneous Lawyers

WHELAN JA:

The respondent (‘Capital Finance’) and a company named Melbourne South Pty Ltd (‘Melbourne South’) entered into a terms purchase agreement in March 2011 which the appellant, Kathleen Devon, guaranteed. The subject matter of the agreement was computer equipment supplied, or to be supplied, by a company named Akyman Investments Pty Ltd (‘Akyman’). All the relevant dealings on behalf of Melbourne South with both Capital Finance and Akyman were undertaken by Mrs Devon’s husband, Mr Hugh Devon.

Melbourne South never collected the relevant equipment and it never made payments under the terms purchase agreement, save for the first payment which Capital Finance received by direct debit. Capital Finance eventually took possession of the equipment and arranged for it to be sold at auction. It then sued Melbourne South and Mrs Devon for the sum of $109,710.36, being what was alleged to be due under the terms purchase agreement and the guarantee.

Melbourne South went into liquidation. Capital Finance did not seek leave to proceed against it. It did proceed against Mrs Devon and a trial was held in September 2013. On 18 October 2013 Judge Cosgrave in the County Court delivered judgment.[1] He found in favour of Capital Finance and gave judgment against Mrs Devon.
[1][2013] VCC 1252.

Extension of time

Mrs Devon did not appeal in time. By a summons issued on 15 November 2013 she sought an extension of time. She issued that summons herself. She had been represented by counsel before Judge Cosgrave. She has since obtained representation through the Victorian Bar’s Pro Bono Scheme. Mrs Devon has sworn in an affidavit that the barrister who appeared for her in the County Court incorrectly advised her that she had 28 days in which to appeal, and she exhibited a letter from him confirming that advice. Her new counsel drafted an amended proposed notice of appeal dated 25 February 2014.

On 13 February 2014 Judicial Registrar Pedley ordered, amongst other things, that the application for an extension of time and the appeal, if an extension is granted, be heard on the same day.

After hearing brief argument, on 27 February 2014 the Court granted the extension sought, gave leave to…

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 Devon v Capital Finance Australia Ltd

Details

AGLC: Devon v Capital Finance Australia Ltd [2014] VSCA 73
Case: [2014] VSCA 73
Decision Date: 15 April 2014

CaseChat Overview and Summary

The plaintiff, Devon, brought an action against Capital Finance Australia Ltd in the Federal Circuit and Family Court of Australia, seeking damages for breach of contract and other related claims. The dispute arose from a financial transaction between the parties, where Devon alleged that Capital Finance Australia Ltd had failed to fulfil its obligations under the contract. The defendant, Capital Finance Australia Ltd, contested the claims, and the case proceeded to trial.

The legal issues that the court had to determine included whether a new defence could be raised on appeal, the principles relating to when a new point can be raised on appeal, and when a new trial will be ordered on an issue of fact not litigated at trial. The court had to consider whether the new defence raised by the defendant was permissible under the rules of procedure and whether it was appropriate to order a new trial on the basis of an issue of fact that had not been contested at the original trial.

The court held that a new defence cannot be raised on appeal unless it was raised on the pleadings or at trial, and that a new trial may be ordered on an issue of fact not litigated at trial if it is necessary to achieve justice between the parties. The court found that the new defence raised by the defendant was not permissible as it had not been raised on the pleadings or at trial. However, the court ordered a new trial on an issue of fact that had not been contested at the original trial, as it was necessary to achieve justice between the parties.

The court's orders included a determination that the new defence raised by the defendant was not permissible and that a new trial would be ordered on an issue of fact not litigated at trial. The court also made orders for costs and further directions for the conduct of the proceedings. The case highlights the importance of ensuring that all relevant issues are properly raised at the earliest opportunity in litigation, and the need for parties to be mindful of the rules of procedure when seeking to raise new points on appeal.

Orders