Ilford Tower Pty Ltd v Equity One Mortgage Ltd - [2014] VSCA 16

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2013 0035
ILFORD TOWER PTY LTD (ACN 087 591 017) and TERESA DINC	First Appellant Second Appellant
v
EQUITY ONE MORTGAGE FUND LTD (ACN 106 720 941)	Respondent

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JUDGES	WARREN CJ, TATE JA and SIFRIS AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	6 February 2014
DATE OF JUDGMENT	21 February 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 16
JUDGMENT APPEALED FROM	[2013] VSC 68 (Randall AsJ)

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PRACTICE AND PROCEDURE – Application by non-solicitor for leave to represent company on appeal – Requirement that companies be represented by a solicitor – General power to depart from this requirement in an appropriate case – Where company had resources to obtain legal representation – Where complex issues of fact and law – Where granting leave would substantially increase the burden on the respondent and the Court – Where doubt as to whether non-solicitor has authority to act for the company – Leave to represent company refused – Supreme Court (General Civil Procedure) Rules2005 r 1.17(1), r 2.04(1).

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Appearances:	Counsel	Solicitors
For the First Appellant	No appearance
For the Second Appellant	No appearance
For the Respondent	Mr G Moffatt	Mills Oakley Lawyers

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WARREN CJ
TATE JA
SIFRIS AJA:

Summary

On 6 February 2014 this Court dismissed the appellants’ appeal on the basis that there was no appearance by either appellant. Both appellants were initially represented by solicitors, Radebe & Associates. At the commencement of the hearing of the appeal the Court granted the solicitors leave to cease acting on the basis that they had not been put in funds. The second appellant did not attend the hearing of the appeal, having notified the Court by letter that she did not oppose Radebe & Associates’ application for leave to cease acting and that she wished to discontinue her appeal. Following the withdrawal of Radebe & Associates, Anthony Bruno Strangio, a director of the first appellant company, Ilford Tower Pty Ltd (‘Ilford Tower’), who had been present in court throughout, sought leave to appear on its behalf. His application was refused. Both appeals were dismissed with costs, there being no appearance for either appellant.

Background

On 23 April 2009, Ilford Tower and Teresa Dinc, the first and second appellants, entered into a loan agreement with the respondent, Equity One Mortgage Fund Ltd (‘Equity One’). The loan was supported by a mortgage over land on Ordish Road in Dandenong South. Ms Dinc acted as guarantor.

A second loan agreement was entered into on 23 September 2009 by which Equity One advanced Ilford Tower a further sum of $105,000. This agreement was also secured by a mortgage over the land on Ordish Road and Ms Dinc was again the guarantor.

By writ and statement of claim filed 25 May 2010, Equity One alleged that the appellants had defaulted on payment of the total amounts owing under the loan agreements. It alleged that as the requisite notices had been served and not complied with, it was…

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.

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Details

Case: [2014] VSCA 16
Decision Date: 21 February 2014

CaseChat Overview and Summary

Ilford Tower Pty Ltd sought leave to represent itself on appeal from a judgment in the Supreme Court of New South Wales, challenging a decision to grant an order in favour of Equity One Mortgage Ltd. The dispute centred on whether Ilford Tower was entitled to appeal against a judgment that had ordered it to pay certain costs and interest to Equity One. The primary concern was whether the company should be permitted to represent itself on appeal, given that it was required to be represented by a solicitor under the Supreme Court (General Civil Procedure) Rules 2005.

The legal issues before the court included whether Ilford Tower, a non-solicitor, could be granted leave to represent itself on appeal, despite the general requirement for companies to be represented by a solicitor. The court also had to consider the impact on Equity One if leave was granted, and whether there was any doubt about Ilford Tower's authority to act for the company. The court examined whether granting leave would impose an undue burden on the respondent and the court, and whether there were complex issues of fact and law involved in the appeal.

The court determined that Ilford Tower did not meet the criteria for being granted leave to represent itself on appeal. The company had the resources to obtain legal representation, and allowing it to proceed without a solicitor would substantially increase the burden on Equity One and the court. Furthermore, there were complex issues of fact and law involved in the appeal, and there was a doubt as to whether Ilford Tower had the authority to act for the company. Consequently, the court refused the application for leave.

The final orders of the court were that Ilford Tower's application for leave to represent itself on appeal was dismissed. The court held that the company must be represented by a solicitor for the appeal to proceed.

Orders