Jafari v 23 Developments Pty Ltd [No 2] - [2020] VSCA 187

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2018 0110

KOUROSH JAFARI (on his own behalf and as trustee of the Essence Unit Trust)	Applicant
v
23 DEVELOPMENTS PTY LTD (ACN 112 616 976) & ORS (According to the Schedule) [No 2]	Respondent

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JUDGES:	NIALL JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	23 July 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 187

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PRACTICE AND PROCEDURE – Court of Appeal – Applications – Filing – Power of registrar – Application to reopen proceeding after judgment – Applicant had sought special leave to appeal to High Court – Special leave refused – Registrar refused to accept application for filing – Applicant sought review of registrar’s decision – Final judgment – No power to reopen – Application for direction refused – Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd [No 2] [2018] VSCA 203 applied – Supreme Court (General Civil Procedure) Rules 2015 r 64.43(1), (5).

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APPEARANCES:	Counsel	Solicitors
No appearances

NIALL JA:

On 19 September 2019, this Court refused leave to appeal from a judgment of a judge in the trial division.[1] The application for leave to appeal was brought by the applicant on his own behalf and as trustee of the Essence Unit Trust. The proceedings concerned a failed property development venture. One of the issues both at trial and on the application for leave to appeal concerned whether the land which was to be developed was contaminated. The order of this Court refusing leave to appeal was entered.
[1]Jafari v 23 Developments Pty Ltd [2019] VSCA 201.

On 20 November 2019, the applicant applied for special leave to appeal to the High Court of Australia. He relied on three alleged errors.

In his application for special leave, the applicant identified as the first error, that since the judgment of the Court of Appeal, the applicant has discovered evidence that establishes that the land is not subject to contamination of any kind that would have adversely impacted its intended development. The applicant sought to adduce evidence in support of his application for special leave to appeal.

The second error concerned the question whether the respondents had relied on the applicant’s assertion that there was no relevant contamination. The applicant contended that there was no reliance, and therefore no actionable misleading or deceptive conduct.

The third error asserted that the Court of Appeal had erred in finding that the respondent had sustained loss in circumstances where the true position was that the respondent owed money to the applicant.

On 16 April 2020, the High Court refused special leave to appeal.

On 15 May 2020, the applicant sought to file in the registry of the Court of Appeal an application other than leave to appeal and unsworn affidavit of the applicant dated 15 May 2020.

In his proposed application, the applicant contended that there was new and/or fresh evidence not available to the trial judge or to the Court…

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 Jafari v 23 Developments Pty Ltd [No 2]

Details

AGLC: Kourosh Jafari (on his own behalf and as trustee of the Essence Unit Trust) v 23 Developments Pty Ltd (ACN 112 616 976) and Ors (According to the Schedule) [No 2] [2020] VSCA 187
Case: [2020] VSCA 187
Decision Date: 23 July 2020

CaseChat Overview and Summary

Jafari v 23 Developments Pty Ltd [No 2] was a case before the Court of Appeal in Victoria, Australia. The matter involved a dispute between the applicant, Jafari, and the respondent, 23 Developments Pty Ltd, which centred on the applicant's attempt to reopen proceedings after a judgment had been entered against him. Jafari had previously sought special leave to appeal to the High Court, which was refused. The case proceeded to the Court of Appeal where the applicant sought to have the registrar accept a new application for filing, which the registrar had previously declined to do. The applicant then sought a review of the registrar's decision.

The legal issues that the Court of Appeal had to address were whether the registrar had the power to refuse to accept an application for filing and whether the Court had the authority to reopen the proceedings after a final judgment had been entered. The Court considered the relevant provisions of the Supreme Court (General Civil Procedure) Rules 2015, specifically rule 64.43(1) and (5), and the case of Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd [No 2] [2018] VSCA 203. The Court found that the registrar did have the power to refuse to accept an application for filing and that there was no power to reopen the proceedings after a final judgment had been entered. The Court also found that the application for a direction was refused.

In summary, the Court of Appeal found that the registrar had the power to refuse to accept an application for filing and that there was no power to reopen the proceedings after a final judgment had been entered. The application for a direction was also refused. The Court applied the relevant provisions of the Supreme Court (General Civil Procedure) Rules 2015 and the case of Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd [No 2] [2018] VSCA 203 in reaching its decision. The final orders of the Court were that the application for a review of the registrar’s decision was dismissed and that the application for a direction was refused.

Orders