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Hewitt v Count Financial Ltd

Hewitt v Count Financial Ltd

Case [2017] VSCA 354 30 November 2017

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0073

DARREN EDWARD HEWITT	Applicant
v
COUNT FINANCIAL LTD (ACN 001 974 625)	Respondent

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JUDGES:	TATE and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 October 2017
DATE OF JUDGMENT:	30 November 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 354
JUDGMENT APPEALED FROM:	Hewitt v Count Financial Ltd (Unreported, Victorian Court of Appeal, Irving JR, 23 August 2017)

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PRACTICE AND PROCEDURE – Application to set aside Judicial Registrar’s orders refusing extension of time to file application for leave to appeal – Length of delay, reasons for delay, prospects of success, and extent of any prejudice suffered by respondent if extension granted – Reason for delay not adequate – Little to no prospects of success of application for leave to appeal – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	Mr J A J Nixon	Moray & Agnew

TATE JA
KYROU JA:

The applicant, Darren Edward Hewitt (‘Hewitt’), applies for the setting aside of orders made by Irving JR refusing to grant an extension of time for the filing of an application for leave to appeal.[1] Hewitt sought an extension of time to apply for leave to appeal from decisions of the County Court made on 17 March 2017[2] and 12 April 2017.[3] When reviewing the decision of Irving JR, this Court considers the application for an extension of time afresh.[4] In other words, this Court does not review the decision of Irving JR to determine whether or not an error has been committed; rather it looks at Hewitt’s application for an extension of time anew, on the same materials as those before the Judicial Registrar.[5] The respondent, Count Financial Ltd (‘Count Financial’), opposes the grant of an extension of time.
[1]Hewitt v Count Financial Ltd (Unreported, Victorian Court of Appeal, Irving JR, 23 August 2017) (‘Irving JR reasons’). The application is made under r 64.42(8) of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules of Court’).
[2]Hewitt v Count Financial Ltd [2017] VCC 236 (‘Primary reasons’).
[3]Hewitt v Count Financial Ltd[No 2] [2017] VCC 405 (‘Costs reasons’).
[4]See Bisognin v Hera Project Pty Ltd [2016] VSCA 322 [105]. However, see also Leeworthy v Registrar of the Licensing Appeals Tribunal [2017] VSCA 353.
[5]Rules of Court r 64.42(9).

For the reasons below, we would refuse the application for an extension of time.

History of proceedings

The dispute between Hewitt and Count Financial concerns advice that Hewitt alleges John Pollock (‘Pollock’) gave him in June 2007. At that time, Pollock held a sub-licence of an Australian Financial Services Licence with Count Financial.

Hewitt and Pollock met on 28 June 2007 at Pollock’s office in Glen Waverley (‘the June 2007 meeting’). The parties dispute the substance of the June 2007 meeting. Hewitt claims that Pollock advised him to take out a margin loan to buy more units in the Mariner Pipeline Income Trust (‘MIT’).[6] Pollock gave evidence at 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 Hewitt v Count Financial Ltd

Details

AGLC: Hewitt v Count Financial Ltd [2017] VSCA 354
Case: [2017] VSCA 354
Decision Date: 30 November 2017

CaseChat Overview and Summary

Hewitt sought to appeal certain orders made by the Federal Circuit Court. The respondent, Count Financial Ltd, applied to the Court to set aside orders of a Judicial Registrar which had refused an extension of time for Hewitt to file an application for leave to appeal. The Court was required to determine whether the application to set aside should succeed. The Court considered the relevant factors, including the length of delay in making the application, the reasons for the delay, the prospects of success of the application for leave to appeal, and the extent of any prejudice suffered by Count Financial Ltd if the extension was granted. The Court concluded that the reasons for the delay were not adequate, the prospects of success of the application for leave to appeal were little to none, and the extent of any prejudice suffered by Count Financial Ltd if the extension was granted was not significant. The application was dismissed.

Orders