Knight 34 Langdon Road v Bell - [2023] VSCA 54

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0083

KNIGHT 34 LANGDON ROAD PTY LTD (ACN 613 271 079) (AND ANOTHER ACCORDING TO THE ATTACHED SCHEDULE)	Applicants
v
JILL AVIVA BELL (AND OTHERS ACCORDING TO THE ATTACHED SCHEDULE)	Respondents

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JUDGES:	EMERTON P, WALKER JA and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	14 February 2023
DATE OF JUDGMENT:	15 March 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 54
JUDGMENT APPEALED FROM:	[2022] VSC 497 (Daly AsJ)

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PRACTICE AND PROCEDURE – Application for leave to appeal – Application to adduce further evidence pursuant to r 64.13 of the Supreme Court (General Civil Procedure) Rules 2015 – Where proceeding commenced to enforce contract of sale of an apartment – Where application made for summary enforcement of settlement agreement – Where settlement agreement enforced and orders made for specific performance of contract of sale – Where further evidence said to demonstrate that purchaser was not ready, willing and able to perform contract of sale at time of hearing of application for enforcement – Whether evidence could have been discovered in time for use at trial – Whether high probability of a different result had evidence been received at trial – Whether evidence reasonably credible – Application for leave to adduce further evidence dismissed – Application for leave to appeal refused.

Bishop v Taylor (1968) 118 CLR 518; Foody v Horewood [2007] VSCA 130, discussed.

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Counsel
Applicants:	Mr D Williams KC with Mr N Elias
Respondents:	Mr M Wise KC with Mr B Petrie for the first and second respondents No appearances for the third and fourth respondents
Solicitors
Applicants:	Welner Lawyers for the first and second applicants
Respondents:	K&L Gates for the first and second respondents Corrs Chambers Westgarth for the third respondent Department of Energy, Environment and Climate Action for the fourth respondent

EMERTON P
WALKER JA
J FORREST AJA:

Introduction

On 3 October 2018, Dr Jill Bell and Dr Roger Bell (the ‘Bells’) entered into a contract to purchase an apartment from Knight 34 Langdon Road Pty Ltd (‘Knight’), a company now controlled by Ms Rosie Wolman.[1] Some four and half years later, the contract remains unperformed. On 26 August 2022, an associate justice of this Court made orders for specific performance of the contract of sale. The orders were later stayed by consent pending the outcome of this application for leave to appeal.
[1]Dr Jill Bell entered into the contract of sale with Knight and subsequently nominated Dr Roger Bell as the purchaser. Dr Roger Bell will be referred to as ‘Dr Bell’ in the remainder of the judgment.
The question before this Court is whether the applicants (Knight and Ms Wolman) ought to be permitted to adduce further evidence as the basis for setting aside the orders of the judge. The further evidence is said to show that the Bells were not ready, willing and able to perform their obligations under the contract of sale at the date of the hearing…

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: [2023] VSCA 54
Decision Date: 15 March 2023

CaseChat Overview and Summary

Knight 34 Langdon Road, the appellant, sought leave to appeal a decision of the Supreme Court of Victoria, which had dismissed its application to adduce further evidence under rule 64.13 of the Supreme Court (General Civil Procedure) Rules 2015. The dispute related to a contract of sale for an apartment. The respondent, Bell, applied for summary enforcement of a settlement agreement, which was granted, leading to orders for specific performance of the contract of sale. Knight subsequently applied for leave to adduce further evidence, alleging that Bell was not ready, willing, and able to perform the contract of sale at the time of the enforcement hearing. Knight claimed that the evidence could not have been discovered in time for the trial and that there was a high probability of a different result if the evidence had been received.

The court considered whether the evidence was reasonably credible and whether there was a high probability of a different result if the evidence had been received at the trial. It held that the evidence was not reasonably credible as it did not provide a satisfactory explanation for the failure to adduce it at trial. The court also held that there was no high probability of a different result if the evidence had been received at the trial. The application to adduce further evidence was dismissed, and the application for leave to appeal was refused. The court referred to Bishop v Taylor and Foody v Horewood in reaching its decision.

The court held that the application for leave to adduce further evidence was an exceptional remedy and could only be granted if the evidence was reasonably credible and there was a high probability of a different result if the evidence had been received at the trial. The court held that Knight had failed to establish either criterion, and therefore, the application was dismissed. The court also held that the application for leave to appeal was an interlocutory application and would only be granted if there were special circumstances. The court held that there were no special circumstances in this case, and therefore, the application for leave to appeal was refused.

Orders