Kathleen Linda Devon v Capital Finance Australia Limited (ACN 069 663 163)

[2014] HCASL 160

KATHLEEN LINDA DEVON

v

CAPITAL FINANCE AUSTRALIA LIMITED (ACN 069 663 163)

[2014] HCASL 160
M39/2014

1. In March 2011, Melbourne South Pty Ltd ("MS") entered into an agreement with the respondent to hire certain computer equipment which the respondent was to purchase from a third party.  MS's payment obligations to the respondent were guaranteed by the applicant.  MS subsequently defaulted on its payment obligations and went into liquidation.

2. The respondent commenced proceedings in the County Court of Victoria against the applicant to enforce its guarantee.  By way of defence, the applicant contended that it was a term of the agreement between MS and the respondent that the respondent would not purchase the computer equipment until MS had inspected the equipment and notified the respondent.  On 16 October 2013, the County Court (Cosgrave J) rejected the applicant's defence and gave judgment for the respondent.

3. On 15 April 2014, the Court of Appeal of the Supreme Court of Victoria (Whelan JA, Santamaria JA agreeing) dismissed the applicant's appeal.  The applicant contended that the primary judge had erred by failing to consider a defence that it was a term of the agreement that the computer equipment purchased by the respondent would be new.  Whelan JA held that that defence was neither pleaded nor raised during the conduct of the trial, and that the applicant should not be allowed to raise it for the first time on appeal.

4. The applicant now seeks special leave to appeal to this Court.  The Court of Appeal's decision involved the application of settled principles.  There is no reason to doubt its correctness.  The application would not enjoy sufficient prospects of success to warrant the grant of special leave.  Special leave should be refused.

5. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

S.M. Kiefel
11 September 2014 P.A. Keane