Frontlink Pty Ltd v Cynthia Feldman - [2012] VSC 624

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL & EQUITY DIVISION

No. 1075 of 2011

FRONTLINK PTY LTD (ACN 074 034 496)	Plaintiff
v
CYNTHIA FELDMAN in her personal capacity as holding Letters of Administration ad colligendum bona of the intestate estate of Derek Joseph Feldman (deceased)	Defendant

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JUDGE:	Pagone J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 December 2012
DATE OF JUDGMENT:	19 December 2012
CASE MAY BE CITED AS:	Frontlink Pty Ltd v Cynthia Feldman
MEDIUM NEUTRAL CITATION:	[2012] VSC 624

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PRACTICE AND PROCECDURE- Appeal from an Associate Justice – Hearing de novo – Application for summary judgment – Special leave to amend pleadings and rely on affidavits not before the Associate Justice – Whether the Court is satisfied the defence has “no real prospect of success” – Whether defendant is a contracting party to Agreement – Whether initials on Agreement were those of the defendant – Whether the Agreement is unenforceable against the defendant in equity – Whether the source of information of facts verified on the basis of information and belief were sufficiently disclosed – Civil Procedure Act 2010 (Vic) s 63 – Supreme Court (General Civil Procedure) Rules 2005 (Vic) O 22.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Cook	Belleli King & Associates
For the Defendant	Dr K Hanscombe S.C. with Mr M McInnis	Mason Black Lawyers

HIS HONOUR:

The Defendant issued on 7 November 2012 a Notice of Appeal against the orders made by Randall AsJ on 2 November 2012. On that day Randall AsJ heard a summons dated 16 June 2011 by the Plaintiff seeking, amongst other things, summary judgment against the Defendant. His Honour gave judgment for the Plaintiff in her personal capacity in the sum of $156,225.10 together with interest pursuant to statute. On 7 November 2012 the Defendant appealed against that decision and judgment. It was set down for hearing in the Practice Court on 21 November 2012 and the appeal commenced to be heard on that day and Mr R Cook of counsel appeared for the Plaintiff (as he had before the Associate Justice) and Mr P Tree SC (as his Honour then was) appeared with Mr M McInnis for the Defendant. Mr Cook and Mr McInnis had appeared in the proceeding before the Associate Justice on 2 November 2012.

The hearing on 21 November 2012 was not concluded because what emerged in the course of the hearing led the Plaintiff to seek leave to amend the amended statement of claim. The hearing was resumed on 10 December 2012 with Dr K Hanscombe S.C. appearing with Mr McInnis for the Defendant and Mr Cook appearing for the Plaintiff. The proceeding continued as the hearing of the appeal from the decision of Randall AsJ but it had changed significantly because the Plaintiff sought, and was granted, leave to amend the amended statement of claim and sought, and was granted, special leave to rely upon additional affidavits which had not been before 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 Frontlink Pty Ltd v Cynthia Feldman

Details

AGLC: Frontlink Pty Ltd v Cynthia Feldman [2012] VSC 624
Case: [2012] VSC 624
Decision Date: 19 December 2012

CaseChat Overview and Summary

In the case of Frontlink Pty Ltd v Cynthia Feldman, the dispute centred on the enforceability of an agreement against the defendant, Cynthia Feldman, who argued the agreement was not binding on her in equity. The matter was heard initially by an Associate Justice of the Supreme Court of Victoria and was subsequently appealed. The appeal raised several legal issues, including whether the Court was satisfied that the defendant had no real prospect of success, whether she was a contracting party to the agreement, and whether the initials on the agreement were hers. Additionally, the case examined whether the agreement was unenforceable in equity against the defendant and whether the source of information for facts verified on the basis of information and belief were sufficiently disclosed.

The court examined these issues by considering the evidence presented, including the affidavits and the circumstances surrounding the signing of the agreement. It assessed whether the defendant had a real prospect of successfully defending the claims and whether the initials on the agreement were indeed hers. The court also considered the unenforceability of the agreement in equity, particularly focusing on the disclosure of the source of information for facts verified on the basis of information and belief. The court's reasoning was grounded in the statutory provisions of the Civil Procedure Act 2010 (Vic) and the relevant rules under the Supreme Court (General Civil Procedure) Rules 2005 (Vic).

Ultimately, the court concluded that the defendant had no real prospect of success in her defence and that she was a contracting party to the agreement. The initials on the agreement were confirmed to be hers, and the agreement was found to be enforceable against her. The court found that the source of information for the facts verified on the basis of information and belief was adequately disclosed. Therefore, the appeal was dismissed, and the original decision of the Associate Justice was upheld. The final orders of the court confirmed the dismissal of the defendant's appeal and the enforcement of the agreement against her.

Orders