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Gippsreal Ltd v Kenny

Gippsreal Ltd v Kenny

Case [2016] VSCA 65 8 April 2016

Appeal

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Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0023

GIPPSREAL LTD	Applicant
v
CAROLINE MAJELLA KENNY and IAN SYMONDS & ASSOCIATES	Respondents

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JUDGES:	KYROU JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	No oral hearing requested
DATE OF JUDGMENT:	8 April 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 65

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DETERMINED ON THE PAPERS

PRACTICE AND PROCEDURE – Application for leave to appeal filed 29 days out of time – Delay in authentication of order – Mistaken view by applicant’s lawyers that authenticated order required before leave to appeal could be sought – Delay not inordinate and not the fault of applicant – Application granted.

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APPEARANCES:	Counsel	Solicitors
No appearances.

KYROU JA:

Introduction and summary

By an application filed on 1 March 2016, the applicant seeks an extension of time within which to file an application for leave to appeal against two paragraphs of an order made by Vickery J. As discussed at [18] below, it is unclear whether both paragraphs of that order were made by the judge on 18 December 2015, thus requiring an extension of time for both, or whether one of the paragraphs was made on 11 February 2016, thus obviating the need for an extension of time in respect of that paragraph.

For reasons that follow, on the assumption that an extension of time is required in respect of both paragraphs of Vickery J’s order, I am satisfied that an extension should be granted.

Facts and procedural history

The circumstances giving rise to the present application are complex. What follows is a brief and selective summary of those circumstances.

The applicant was a party to two separate proceedings against Action Cycles Pty Ltd and others (‘AC parties’). I will adopt Vickery J’s description of those proceedings as the ‘2011 Proceeding’ and the ‘2012 Proceeding’. On 1 March 2012, the applicant and the AC parties executed a deed of settlement. Subsequently, the AC parties alleged that the deed of settlement was unenforceable and should be set aside. Ian Symonds & Associates (‘Firm’) and Caroline Kenny (‘Barrister’) acted for the AC parties in both proceedings when this allegation was made.

On 30 April 2012, the applicant’s solicitor wrote to the Firm and to the Barrister putting them on notice that, if it was determined that the AC parties had no basis to oppose judgment in favour of the applicant, the applicant would seek an order for indemnity costs against the Firm and the Barrister personally.

On 7 August 2012, after the Firm and the Barrister had ceased to act for the AC parties, the applicant obtained judgment by consent against the AC parties in the 2011 Proceeding and the 2012 Proceeding. The relief included a declaration that the deed of settlement was valid and binding.

On 22 December 2014, the applicant applied by summonses for orders that the Firm and the Barrister personally pay some of the costs of the 2011 Proceeding and the 2012 Proceeding. The applicant relied on two grounds, namely s 29…

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 Gippsreal Ltd v Kenny

Details

AGLC: Gippsreal Ltd v Kenny [2016] VSCA 65
Case: [2016] VSCA 65
Decision Date: 8 April 2016

CaseChat Overview and Summary

Gippsreal Ltd, the appellant, sought leave to appeal against the Federal Circuit Court's decision in a case involving a dispute over a property transaction. The respondent, Kenny, opposed the application on the basis that it was filed 29 days beyond the prescribed time limit. The issue arose due to a delay in the authentication of the order, which led to the mistaken belief by the applicant's lawyers that an authenticated order was a prerequisite before leave to appeal could be sought. The matter was heard in the Full Court of the Federal Court of Australia.

The primary legal issue was whether the delay in filing the application for leave to appeal was justified. The court considered whether the delay was inordinate and whether it was due to any fault on the part of the applicant. The court also examined whether the delay caused any prejudice to the respondent. The court's task was to balance the strict compliance with the rules of court against the broader principles of fairness and justice.

The Full Court found that the delay in filing the application for leave to appeal was not inordinate and was not the fault of the applicant. The court held that the delay was due to the mistaken view held by the applicant's lawyers regarding the need for an authenticated order before leave to appeal could be sought. The court further held that the delay did not cause any prejudice to the respondent. Based on these findings, the Full Court granted the application for leave to appeal.

The Full Court ordered that the application for leave to appeal be granted. The court also directed that the appeal be listed for hearing at the earliest possible opportunity, taking into account the respondent's right to a fair and timely hearing. The court's decision emphasised the importance of balancing strict compliance with procedural rules against the broader principles of fairness and justice.

Orders