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…
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- AGLC
- Hewitt v Count Financial Ltd [2017] VSCA 354
- Case
- [2017] VSCA 354
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