Jafari v 23 Developments Pty Ltd - [2020] HCASL 228

JAFARI
v
23 DEVELOPMENTS PTY LTD & ORS
[2020] HCASL 228
M79/2020

On 16 April 2020, Keane and Edelman JJ directed, pursuant to r 41.08.1 of the High Court Rules 2004 (Cth) that the Registrar draw up, sign and seal an order dismissing the applicant's application for special leave to appeal against a judgment of the Court of Appeal of the Supreme Court of Victoria (Whelan and Niall JJA and Sifris AJA) of 19 September 2019 ("the Court of Appeal's first judgment").
By the Court of Appeal's first judgment, the Court of Appeal refused the applicant leave to appeal against the judgment of the primary judge (Elliott J) holding, inter alia, that the applicant had engaged in misleading and deceptive conduct by representing to the respondents as prospective purchasers of land in Seddon that there would not be "any issues" with respect to contamination of the land.
By application dated 15 May 2020, the applicant applied to the Court of Appeal for leave to file "new and[/]or fresh evidence" regarding the level of contamination of the land and for a rehearing of the appeal in light of that evidence. On 23 July 2020, the Court of Appeal (Niall JA) dismissed that application ("the Court of Appeal's second judgment"). The applicant now applies, out of time, for special leave to appeal against the Court of Appeal's second judgment.
The applicant requires an extension of time, but an extension of time would be futile. There is no reason to doubt the correctness of the Court of Appeal's second judgment. An appeal to this Court would enjoy no prospect of success.
Pursuant to r 41.08.1 of the High Court Rules, we direct the Registrar to draw up, sign and seal an order dismissing the application.

G.A.A. Nettle M.M. Gordon

5 November 2020

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: [2020] HCASL 228
Decision Date

CaseChat Overview and Summary

The case of Jafari v 23 Developments Pty Ltd involves the applicant, Jafari, seeking special leave to appeal against the Court of Appeal of the Supreme Court of Victoria's decision. Jafari had initially sought to appeal the primary judge's judgment, which found that Jafari had engaged in misleading and deceptive conduct regarding the contamination of a piece of land. The Court of Appeal refused leave to appeal this judgment. Subsequently, Jafari applied for leave to present new evidence regarding the contamination levels and for a rehearing of the appeal. This second application was dismissed by the Court of Appeal, leading to Jafari's current application for special leave to appeal this second judgment.

The primary legal issue before the court was whether the applicant, Jafari, should be granted special leave to appeal against the Court of Appeal's second judgment. This involved assessing the merits of the new evidence presented by Jafari and determining whether there was a reasonable prospect that the appeal would succeed. Additionally, the court had to consider whether an extension of time for the application should be granted and if such an extension would be futile.

The court found that the application for special leave to appeal was out of time and would be futile. There was no evidence to suggest that the Court of Appeal's second judgment was incorrect. The court determined that an appeal to the High Court would have no reasonable prospect of success, given the circumstances. Consequently, the court directed the Registrar to dismiss the application for special leave to appeal, in line with rule 41.08.1 of the High Court Rules.

There are no additional final orders to be made beyond the dismissal of the application for special leave to appeal. The court's decision effectively concludes the matter, affirming the correctness of the Court of Appeal's second judgment.

Orders