Hrycenko v Hrycenko - [2020] VSCA 324

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2020 0054

VICTOR HRYCENKO	Applicant
v
NICHOLAS HRYCENKO (in his capacity as legal representative of the late GEORGE HRYCENKO)	Respondent

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JUDGES:	TATE and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 November 2020
DATE OF JUDGMENT:	15 December 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 324
JUDGMENT APPEALED FROM:	[2019] VSC 700; [2019] VSC 746 (Lyons J)

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PRACTICE AND PROCEDURE – Leave to appeal – Application for extension of time –Judicial registrar refused extension of time – Whether extension of time justified – Significant and inadequately explained delay in making application but no compelling evidence of prejudice – Whether proposed appeal so devoid of merit as to be futile – Majority of proposed grounds dependent on finding of mental incapacity not made by trial judge – Remaining proposed ground overlooked trial judge’s supplementary reasons – Proposed appeal devoid of merit – Leeworthy v Registrar of Licensing Appeals Tribunal [2017] VSCA 353, applied – Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 64.05(1)(a), 64.42(8), 64.42(9) – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Clarke QC with	NOH Legal
Mr H Kirimof
For the Respondent	Mr N Magee QC with	Kennedy Guy
Mr T Bevan

TATE JA
McLEISH JA:

On 18 August 2020, Pedley JR in his capacity as Registrar of the Court of Appeal refused an application to extend time for filing an application for leave to appeal. Pursuant to r 64.42(8) of the Supreme Court (General Civil Procedure) Rules 2015, the applicant on 10 September 2020 sought a redetermination of the decision.

For the reasons set out below, the application must be dismissed.

Proceeding at first instance

The proceeding in respect of which the applicant wishes to seek leave to appeal was brought in the Trial Division by his late father, George Hrycenko, who was 96 years old at the time of judgment. The proceeding concerned the management of George’s financial affairs by his son Victor, the applicant. During the course of the trial, which began in October 2018, the trial judge became concerned about the capacity of George to conduct the proceeding, and in December 2018 a litigation guardian was appointed to act on his behalf. George died after judgment was delivered and his other son Nick, in his capacity as George’s legal representative, is the respondent to the present application.

Relevantly for present purposes, George alleged in the proceeding that, when Victor was in charge of his financial affairs, Victor engaged in unconscionable conduct and exercised undue influence over George in relation to payments made to Victor totalling $2,250,000. Victor admitted receiving the payments but said that they were made to him by George by way of gift. Victor acknowledged that a presumption of undue influence arose because of the relationship between George and him during the period in question, but submitted that George had made his own judgment and exercised free will in relation to the payments. Victor…

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 Hrycenko v Hrycenko

Details

AGLC: Hrycenko v Hrycenko [2020] VSCA 324
Case: [2020] VSCA 324
Decision Date: 15 December 2020

CaseChat Overview and Summary

In the matter of Hrycenko v Hrycenko, the respondent applied for an extension of time to appeal the decision of the County Court. The application was refused by a judicial registrar who found that the delay in making the application was significant and inadequately explained. The applicant sought leave to appeal the decision of the judicial registrar, arguing that the application for an extension of time should have been granted due to the merits of the appeal and a lack of prejudice to the respondent.

The court was required to determine whether the extension of time was justified and whether the proposed appeal was devoid of merit. The applicant argued that the extension of time was justified due to a delay in obtaining legal representation and that the proposed appeal was not devoid of merit as it raised arguable questions of law. However, the court found that the delay in making the application was significant and inadequately explained, and there was no compelling evidence of prejudice to the respondent. Furthermore, the court found that the proposed appeal was devoid of merit as the majority of the proposed grounds depended on a finding of mental incapacity not made by the trial judge, and the remaining proposed ground overlooked the trial judge’s supplementary reasons.

The court held that the application for leave to appeal was devoid of merit as the proposed appeal was unlikely to succeed. The court applied Leeworthy v Registrar of Licensing Appeals Tribunal [2017] VSCA 353 and found that the applicant had not satisfied the requirements of Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 64.05(1)(a), 64.42(8), 64.42(9). The application for leave to appeal was dismissed, and the respondent was awarded costs.

The court made no orders as to costs below.

Orders