Gann v Hosny - [2015] VSCA 43

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2014 0138

JASON WILLIAM GANN

JOSEPH HOSNY

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JUDGES:	WHELAN and FERGUSON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 and 16 March 2015
DATE OF JUDGMENT:	16 March 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 43
JUDGMENT APPEALED FROM:	[2012] VCC 661 (Judge Davis)

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APPEAL PROCEDURE – Sole ground of appeal that judgment procured by fraud – Issue of fraud contested – Respondent to give evidence on the issue and adduce medical evidence – Not appropriate for Court of Appeal to determine issues involving oral evidence and cross-examination – Appeal allowed to the extent that issue of fraud referred back to trial court – Appeal otherwise dismissed without adjudication on the merits – Noble v Owens [2010] 3 All ER 830 followed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S W Stuckey	K & L Gates
For the Respondent	Ms K S Gladman	Nowicki Carbone

WHELAN JA
FERGUSON JA:

On 12 December 2014, this Court granted an application by Jason William Gann for an extension of time in which to appeal from a judgment delivered in favour of Joseph Hosny in the County Court on 6 June 2012.[1]
[1][2014] VSCA 344.

The events which gave rise to the cause of action, and the relevant circumstances of the trial, are briefly set out in the Court of Appeal’s decision on that application and we will not repeat them now.

The appellant, Mr Gann, has a single ground of appeal. It is that the judgment below was procured by fraud.

The appellant brought an application for leave to issue a subpoena. As a result of communication from the registry of the Court of Appeal, the parties were asked to address the issue of how the allegation of fraud should be determined and were referred to a number of relevant authorities, including McDonald v McDonald,[2] Noble v Owens,[3] and an unreported decision of this Court in Drapac v Wain.[4]
[2](1965) 113 CLR 529.
[3][2010] 3 All ER 830, [2010] EWCA Civ 224.
[4](Unreported, Victorian Court of Appeal, Warren CJ, Nettle and Whelan JJA, 7 October 2013).

It became clear in the course of the hearing that the issue of whether the judgment was procured by fraud is to be contested. Further, counsel for Mr Hosny has informed the Court that he will be giving evidence on the issue and that it is likely that there will be medical evidence as well.

In the circumstances, the Court expressed the tentative view that the issue of fraud should be determined in the County Court. Apart from other considerations, it was not appropriate for this Court to determine issues where there will be oral evidence and cross-examination.

One matter of particular concern to the appellant was the fact that the respondent has been seeking to enforce the judgment in the United States of America, and the appellant was concerned that enforcement proceedings might occur in the USA if…

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 Gann v Hosny

Details

AGLC: Gann v Hosny [2015] VSCA 43
Case: [2015] VSCA 43
Decision Date: 16 March 2015

CaseChat Overview and Summary

In the appeal before the court, the appellant, Gann, sought to overturn a judgment entered in favour of the respondent, Hosny, on the basis that the judgment was procured by fraud. The dispute originated from a legal proceeding in the trial court where the appellant alleged that the respondent had committed fraud to obtain the judgment. The case was brought before the appellate court, which was required to determine whether the appellant's claim of fraud was valid and whether the court could address such claims on appeal.

The central legal issue before the court was whether the sole ground of appeal, that the judgment was procured by fraud, could be determined on the basis of the existing record or if it required additional evidence, such as oral testimony and cross-examination. The court considered whether it was appropriate to resolve this issue on appeal or if it should be remitted back to the trial court. The court noted that the issue of fraud was contested and required the respondent to provide evidence, including medical evidence, to substantiate their position. Given the nature of the evidence needed, the court held that it was not suitable to make a determination on the fraud allegation in the absence of the respondent's evidence and the opportunity for cross-examination.

Following the precedent set in Noble v Owens, the court allowed the appeal to the extent that the issue of fraud was referred back to the trial court. The court reasoned that the appeal court was not equipped to handle matters that involved the need for oral evidence and cross-examination. The appeal was otherwise dismissed without making a decision on the merits of the case. This approach ensured that the respondent had the opportunity to present their case fully in the trial court, with all necessary evidence and the chance for proper examination and rebuttal.

Orders