Legal Research
Cases
Fernandez v EJ Industries Ltd

Fernandez v EJ Industries Ltd

Case [2020] VSCA 139 29 May 2020

Civil Litigation & Procedure

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2020 0018

BEATRICE FERNANDEZ	First Applicant
and
TREVOR FERNANDEZ	Second Applicant
v
EJ INDUSTRIES LTD	Respondent

---

JUDGES:	BEACH and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 May 2020
DATE OF JUDGMENT:	29 May 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 139
JUDGMENT APPEALED FROM:	Fernandez v EJ Industries Ltd (Court of Appeal, Supreme Court of Victoria, Pedley JR, 7 May 2020)

---

PRACTICE AND PROCEDURE – Application to set aside Judicial Registrar’s orders refusing extension of time to file application for leave to appeal – Delay of 42 days – No adequate reason for delay – Proposed appeal devoid of merit – Prejudice to respondent if application granted – Application refused – Supreme Court (General Civil Procedure) Rules 2015 r 64.08

---

APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr L E P Magowan	PCL Lawyers
For the Respondent	Mr A Segal	Dentons

BEACH JA
KAYE JA:

The applicants apply to set aside orders made by Judicial Registrar Pedley refusing to grant an extension of time for the filing of an application to seek leave to appeal against the decision of the County Court made on 3 December 2019.

In the proceeding in the County Court, the respondent claimed USD480,000 against the applicants pursuant to a loan agreement, or alternatively as money had and received. On 23 August 2019, a judicial registrar of the County Court, on the application of the respondent, gave summary judgment against the applicants for the amount claimed. The applicants sought a review of that decision pursuant to r 84.03 of the County Court Civil Procedure Rules 2018. On 3 December 2019, the judge, who heard the review, dismissed the application and ordered costs in favour of the respondent.[1] On 28 February 2020, the applicants made an application, pursuant to r 64.08(1) of the Supreme Court (General Civil Procedure) Rules 2015, that time be extended for the filing and serving of an application for leave to appeal. On the same date, the applicants filed and served a proposed application for leave to appeal.
[1]EJ Industries Ltd v Fernandez [2019] VCC 2252 (‘Reasons’).

Background

The respondent company is controlled by Everton Murdoch (‘Murdoch’), who resides in Canada. He is the brother-in-law of the two applicants. In early November 2013, the second applicant contacted Murdoch requesting urgent financial assistance in respect of a debt that was then due and owing by the applicants to their bank. Murdoch agreed to provide that assistance. In an affidavit sworn in the County Court, the second applicant stated that Murdoch told him that he would provide that finance himself, as he could not ‘involve’ the respondent in providing the funds to him. On 4 November 2013, the amount of USD480,000 was forwarded to the account of the applicants from the account of the respondent with Scotiabank. On the same day, or the next day, Murdoch sent an email to the second applicant attaching the receipt of Scotiabank, which recorded the…

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 Fernandez v EJ Industries Ltd

Details

AGLC: Fernandez v EJ Industries Ltd [2020] VSCA 139
Case: [2020] VSCA 139
Decision Date: 29 May 2020

CaseChat Overview and Summary

In the case of Fernandez v EJ Industries Ltd, the applicant sought to set aside orders made by a Judicial Registrar which had refused an extension of time to file an application for leave to appeal. The dispute arose from the Registrar’s decision to not grant the extension, which was sought 42 days after the deadline for filing the application. The court was tasked with determining whether the Judicial Registrar's decision should be overturned and whether there was a sufficient reason for the delay in seeking the extension.

The legal issues before the court included whether the applicant had provided adequate reasons for the delay in filing the application for an extension, and whether the proposed appeal had any merit. The court also needed to consider whether granting the extension would cause prejudice to the respondent. The applicant argued that the delay was due to unforeseen circumstances and that the appeal had a reasonable chance of success. Conversely, the respondent argued that the delay was inexcusable and that the appeal was without merit.

The court found that the applicant had not provided a satisfactory explanation for the delay, and the proposed appeal appeared to lack merit. Additionally, the court determined that granting the extension would result in significant prejudice to the respondent. Therefore, the court refused the application to set aside the Registrar’s orders. The court relied on Supreme Court (General Civil Procedure) Rules 2015 r 64.08 in reaching its decision, which governs applications for extensions of time in civil proceedings.

As a result of the court's decision, the orders made by the Judicial Registrar refusing the extension of time to file the application for leave to appeal were upheld. The application to set aside these orders was dismissed, and no further extension of time was granted to the applicant.

Orders