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Feldman v Frontlink Pty Ltd

Feldman v Frontlink Pty Ltd

Case [2014] VSCA 27 3 March 2014

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2013 0017
CYNTHIA FELDMAN	Appellant
v
FRONTLINK PTY LTD	Respondent

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JUDGES	WARREN CJ, TATE JA and SIFRIS AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	5 February 2014
DATE OF JUDGMENT	3 March 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 27
JUDGMENT APPEALED FROM	[2012] VSC 624 (Pagone J)

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PRACTICE AND PROCEDURE – Application for leave to amend Notice of Appeal – Application for leave to rely on new evidence – Where proposed amendments do not raise new argument – Where unnecessary to deal with application for leave to rely on new evidence – Leave granted.

PRACTICE AND PROCEDURE – Appeal against Summary Judgment – Whether the defence has a ‘real prospect of success’ – Whether cause of action verified – Whether in the interests of justice to refer the matter to trial – Where unusual features of the transaction – Where additional claims on foot in the proceeding – Appeal allowed – Civil Procedure Act 2010 (Vic) ss 63(1) and 64 – Supreme Court (General Civil Procedure) Rules 2005 (Vic) Order 22 – Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P D Santamaria SC with Mr M V McInnis	Mason Black Lawyers
For the Respondent	Mr R E Cook	Belleli King & Associates

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WARREN CJ
TATE JA
SIFRIS AJA:

Introduction

The respondent (‘Frontlink’) is the owner of a property situated at 181 Grices Road, Berwick (‘the Property’).

Pursuant to a Joint Venture Farming Agreement purportedly made between Frontlink and the appellant (‘Mrs Feldman’) and her late husband Derek Joseph Feldman (‘Mr Feldman’) on 20 October 2002 (‘the Agreement’), the Feldmans were engaged by Frontlink to manage the Property. The Feldmans are referred to in the Agreement as the Farm Consultant.

The Agreement contained the following relevant terms:

•Clause 1 – The Agreement would commence on 20 October 2002 and continue until 21 October 2005 or as ’extended in accordance with the terms of [the] agreement’.
•Clause 5 – Frontlink would pay council and water rates, and building insurance, with respect to the Property and the Farm Consultant ’shall reimburse the Owner for council rates and for water, power, building insurance and other services’ used by and in relation to the Property.
•Clause 6(a) – the Agreement would be for a three year term with the Farm Consultant having the option to extend the arrangement for a further three years.
•Clause 6 – the Farm Consultant would pay a fee to the Owner as specified in that clause.

There is an issue as to whether Mrs Feldman signed the Agreement. Mrs Feldman did not deny signing the Agreement. She said that the initials on the Agreement were similar to hers but that she could not recall signing the Agreement.

It is common ground that Mr Feldman took possession of and remained in occupation of the Property (although he did not live there)…

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 Feldman v Frontlink Pty Ltd

Details

AGLC: Feldman v Frontlink Pty Ltd [2014] VSCA 27
Case: [2014] VSCA 27
Decision Date: 3 March 2014

CaseChat Overview and Summary

The case of Feldman v Frontlink Pty Ltd involved an application by the defendant for leave to amend a notice of appeal and to rely on new evidence. The defendant sought to challenge the trial judge’s grant of summary judgment in favour of the plaintiff. The appeal was heard in the Court of Appeal of the Supreme Court of Victoria.

The central legal issues before the court were whether the defendant had a real prospect of success in its defence and whether it was in the interests of justice to allow the appeal. Additionally, the court had to consider the validity of the cause of action and whether the appeal should be referred to trial given the unusual features of the transaction and the presence of additional claims arising from the proceedings.

In deciding the matter, the court noted that the proposed amendments to the notice of appeal did not introduce any new arguments. Therefore, the court granted leave for the amendments. The court also found it unnecessary to address the application for leave to rely on new evidence. Ultimately, the court allowed the appeal on the basis that the defence had a real prospect of success, the cause of action was verified, and it was in the interests of justice to refer the matter to trial. The court referred to statutory provisions and case law, including Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd, to support its decision.

The final orders of the court included allowing the appeal, setting aside the summary judgment, and referring the matter back to the trial division for further proceedings. The court emphasised the importance of the unusual nature of the transaction and the additional claims that arose from the proceedings in its decision-making process.

Orders