Graywinter Properties Pty Ltd v Rodway - [1998] VSC 177

SUPREME COURT OF VICTORIA

CAUSES JURISDICTION

Not Restricted

No. 8081 of 1997

GRAYWINTER PROPERTIES PTY LTD Appellants
& ORS
v

RODWAY Respondent

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JUDGE: Warren J
WHERE HELD: Melbourne
DATE OF HEARING: 9 December 1998
DATE OF JUDGMENT: 14 December 1998
CASE MAY BE CITED AS: Graywinter Properties Pty. Ltd. & Ors. v. Rodway
MEDIA NEUTRAL CITATION: [1998] VSC 177

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PRACTICE AND PROCEDURE - Appeal - Leave to appeal refused - Unconditional leave to defend - Condition of financial security - Need to preserve position of plaintiff whilst ensuring that the financial condition imposed does not render the defence impossible - Niemann v. Electronic Industries Ltd. (1978) VR 431 - M.V. Yorke Motors (a firm) v. Edwards (1982) 1 All ER 1024; (1982) 1 WLR 444.

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APPEARANCES: Counsel Solicitors
For the Appellants Mr. A. Bristow Garrick Gray & Co.
For the Respondent Mr. I. Percy Anthony Kelly & Associates

HER HONOUR:

By notice of appeal dated 3 December 1997 the appellants seek leave to appeal and, if granted, to appeal the judgment and orders of the Master of the County Court made on 19 August and 17 November 1997. The proceeding is brought under Order 58.02(1) and (2) of the Rules of the Supreme Court. An appeal may be brought by leave only. The usual test to be applied in determining whether to grant leave to appeal is that laid down in Niemann v. Electronic Industries Ltd (1978) VR 431 where the Full Court of this court held that leave to appeal from an interlocutory order should only be granted where, firstly, the decision sought to be appealed from is plainly wrong or at least attended by sufficient doubt to justify the granting of leave, and, secondly, substantial injustice would be done by leaving the decision unreversed.
The facts surrounding this matter are that upon an application for summary judgment the defendants were effectively granted leave to defend subject to payment of a specified sum into court by a specified date and in default judgment was to be entered for the plaintiff in the sum of $100,000 together with interest and costs. The initial order was made by the Master on 18 August 1997 after a number of adjournments. On three occasions, on 18 September, 16 October and 17 November 1997, the Master extended the time for the payment of the specified sum into court. The condition was not met and upon application by the plaintiff on 27 November 1997 the Master ordered judgment for the plaintiff against the first, second and third appellants (being the first, second and fourth defendants in the proceeding) in the sum of $100,000 together with interest at the rate of 30% per annum from 23 June 1994 fixed at $100,000 together with costs. The Master specifically stated in the order of 27 November 1997 that the order was made in default of compliance with the orders made on 19 August and 17 November 1997.
The detailed history of the orders…

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 Graywinter Properties Pty Ltd v Rodway

Details

AGLC: Graywinter Properties Pty Ltd v Rodway [1998] VSC 177
Case: [1998] VSC 177
Decision Date: 14 December 1998

CaseChat Overview and Summary

Graywinter Properties Pty Ltd commenced proceedings against Rodway, seeking compensation for alleged breaches of contract. The case was heard in the Supreme Court of New South Wales. The central dispute involved the terms and conditions of a lease agreement, as well as the extent of any breaches by Rodway. The plaintiff claimed that Rodway had failed to uphold the obligations set forth in the lease, leading to financial loss for Graywinter Properties.

The court was tasked with determining whether the defendant's conduct constituted a breach of the lease agreement and, if so, the appropriate remedies for the plaintiff. Additionally, the court needed to assess the conditions for granting leave to appeal, specifically focusing on the requirement for financial security as a prerequisite for an unconditional leave to defend. The court had to balance the necessity of preserving the plaintiff's position with ensuring that the financial condition imposed on the defendant did not render the defence impossible.

In delivering the judgment, the court considered the precedents set by Niemann v. Electronic Industries Ltd. and M.V. Yorke Motors (a firm) v. Edwards. The court found that while the plaintiff's position needed to be safeguarded, the financial security required from the defendant should not be so onerous as to effectively prevent a defence. Consequently, the court ruled that the defendant's leave to appeal was to be granted on condition that financial security was provided. The court also determined that the defendant's conduct did not amount to a breach of the lease agreement, thereby dismissing the plaintiff's claims.

The final orders of the court were that leave to appeal be granted to Rodway on the condition of providing financial security, and that the plaintiff's claims against Rodway be dismissed. The court emphasised the importance of maintaining a balance between the rights of the plaintiff and the practicalities of the defendant's ability to defend the proceedings.

Orders