Giovinazzo v Resource Capital Limited - [2025] VSCA 176

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0123

MICHAEL JAMES GIOVINAZZO & ANOR (ACCORDING TO THE ATTACHED SCHEDULE)	Applicants
v
RESOURCE CAPITAL LIMITED & ORS (ACCORDING TO THE ATTACHED SCHEDULE)	Respondents

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JUDGES:	NIALL CJ, WALKER AND LYONS JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	3 July 2025
DATE OF JUDGMENT:	30 July 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 176
JUDGMENT APPEALED FROM:	[2024] VSC 548 (M Osborne J)

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PRACTICE AND PROCEDURE – Appeal – Discretionary decision to refuse leave to subpoena a new witness after trial commenced and contrary to earlier procedural orders – Parties entered into an oral agreement regarding ownership of shares – Parties saw a solicitor eighteen months later and discussed matters relating to the agreement – Critical question in trial concerned ownership of shares – Finding on ownership of shares turned on credit of witnesses – Applicant sought to call solicitor as new witness during trial – Primary judge refused to allow new witness – Whether applicant denied procedural fairness by not allowing new witness – Whether primary judge erred in finding new evidence not of central importance to the critical question – Relevance of post-contractual conduct – Whether new witness would cause unfair prejudice to other parties – Whether new witness would present rebuttal evidence – Whether new witness should have been subpoenaed earlier – Where limited window available for trial and new witness would derail trial – Whether decision not to allow new witness unreasonable or plainly unjust – No error established – Leave to appeal refused.

Civil Procedure Act 2010; Supreme Court (General Civil Procedure) Rules 2015; Corporations Act 2001 (Cth).

Hightime Investments Pty Ltd v Adamus Resources Ltd [2012] WASC 295; County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193, discussed.

Eaton v ISS Catering Services Pty Ltd (2013) 42 VR 635; Wilson v Bauer Media [Ruling No 1] [2017] VSC 302; Rush v Nationwide News Pty Ltd [No 4] [2018] FCA 1558; Mobile Innovations Limited v Vodafone Pacific Limited [2003] NSWSC 309; Primrose Meadows Pty Ltd v River View Pty Ltd [2017] VSC 487; N M Rural Enterprises Pty Ltd v Rimanui Farms Ltd [2011] NSWSC 1561; Clifford v Vegas Enterprises Pty Ltd [No 4] [2010] FCA 326; Northern Health v Kuipers [2015] VSCA 172, cited.

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Counsel
Applicants:		B Walker SC with B Gibson and D Porteous
Respondents:		CO Parkinson KC with DF McAloon
Solicitors
Applicants:	Tisher Liner FC Law
Respondents:	Aptum Legal

NIALL CJ
WALKER JA
LYONS JA:

The first applicant, Michael Giovinazzo, is the sole director and shareholder of the second applicant, Omeo Gold Pty Ltd (‘Omeo Gold’).[1] On 22 October 2019, Mr Giovinazzo incorporated Golden Plains Resources Pty Ltd (‘GPR’) as an investment vehicle. GPR had 10 issued shares, which were initially held equally by Mr Giovinazzo and by Tania Pendergast.[2] Ms Pendergast was GPR’s sole director and secretary. GPR entered into various agreements with Rimfire…

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.

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Details

Case: [2025] VSCA 176
Decision Date: 30 July 2025

CaseChat Overview and Summary

The case of Giovinazzo v Resource Capital Limited involved a dispute over the ownership of shares between the applicant and the defendant. The application was for leave to appeal a decision of the primary judge refusing to allow the applicant to call a new witness during the trial. The matter was heard in the Supreme Court of Western Australia. The critical issue before the court was whether the primary judge had erred in refusing to allow the applicant to call a new witness, who was a solicitor that had been present during an earlier discussion between the parties. The applicant argued that the primary judge had denied procedural fairness by not allowing the new witness and that the primary judge had erred in finding that the new evidence was not of central importance to the critical question of ownership of shares.

The court considered the relevant legal principles and found that the primary judge had exercised their discretion in accordance with the law. The court noted that the decision to allow new evidence to be presented in a trial is a discretionary one and that the primary judge had considered all relevant factors, including the relevance of the new evidence, the potential for unfair prejudice to other parties, and the potential for the new evidence to present rebuttal evidence. The court also found that the primary judge had correctly identified that the new witness would have caused significant delay to the trial and would have derailed the limited window available for the trial. The court concluded that the primary judge had not erred in refusing to allow the new witness and that the decision was not unreasonable or plainly unjust.

In light of the above, the court refused the application for leave to appeal. The court found that the primary judge had exercised their discretion in accordance with the law and that the decision not to allow the new witness was not an error of law. The court further found that the potential for unfair prejudice to other parties and the potential for significant delay to the trial outweighed the potential relevance of the new evidence. The decision of the primary judge was therefore upheld, and the application for leave to appeal was refused.

Orders