Mizzi Pty Ltd & Anor v Meredith & Anor - [2010] VSCA 186

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 3879 of 2009

MIZZI PTY LTD (ACN 084 591 122) (AS TRUSTEE OF THE TOWNSEND UNIT TRUST)	First Applicant
aAnd
MANTONELLA PTY LTD (ACN 069 102 531)	Second ~~Respondent~~Applicant
v
GREGORY POLLARD MEREDITH	First Respondent
aAnd
NATIONAL AUSTRALIA BANK (~~CAN~~ ACN 004 044 937)	Second Respondent

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JUDGES	WEINBERG and HANSEN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	16 July 2010
DATE OF JUDGMENT	16 July 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 186
JUDGMENT APPEALED FROM	Mizzi Pty Ltd & Anor v Meredith & Anor [2009] VSC 367 (Byrne J)

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PRACTICE AND PROCEDURE – Applications for extension of time and leave to appeal – No satisfactory explanation for delay – Decision below not attended by sufficient doubt or risk of substantial injustice to warrant reconsideration on appeal – Applications refused – Relief granted on respondent’s summons dismissing purported appeal as incompetent.

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Appearances:	Counsel	Solicitors
For the Applicants	Mr G. Thomas	Frank Sanna & Associates
For the Respondents	Mr C. Scerri QC and Mr E. Woodward	Minter Ellison

WEINBERG JA:

I shall ask Hansen JA to deliver the first judgment in this matter.

HANSEN JA:

There are two applications before the Court today. First, there is a summons filed by the applicants, who were the plaintiffs in a proceeding in the Trial Division, seeking leave to appeal out of time from orders made by Byrne J on 8 September 2009. The second is a summons filed by the respondents, being the defendants to the proceeding, which seeks an order that an appeal purportedly commenced by the applicants by a notice dated 21 (or 22) September 2009 be dismissed as incompetent, the applicants' summons be dismissed and the applicants pay the respondents' costs of the purported appeal and of each summons.

By his orders Byrne J dismissed an appeal by the applicants against an order made by Daly AsJ on 18 May 2009, which itself dismissed an application of the applicants by summons filed on 26 September 2008 that sought the setting aside of a self-executing order made on 18 July 2008. The 18 July order required the applicants to provide inspection of their discovered documents by 29 July 2008 in default of which the proceeding would stand dismissed.

By reason of the applicants not making all documents available for inspection by the stipulated date, the proceeding stood dismissed. That was the position accepted by Daly AsJ and Byrne J on appeal. It was to avoid the consequence that the proceeding had thus been brought to an end, that on 26 September 2008 the applicants filed the summons to set aside the self-executing order made on 18 July 2008.

It is to be noted that also before Byrne J was an appeal by the respondents against orders made by Daly AsJ on 9 May 2008 whereby she dismissed the respondents' application that the proceeding be dismissed for want of prosecution. That application had been brought…

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: [2010] VSCA 186
Decision Date: 16 July 2010

CaseChat Overview and Summary

Mizzi Pty Ltd & Anor v Meredith & Anor involved an application for an extension of time and leave to appeal in the Supreme Court of New South Wales. The applicants, Mizzi Pty Ltd and another, sought an extension of time to lodge their appeal, as well as leave to appeal against a decision rendered in their disfavour. The respondents, Meredith & Anor, opposed the application, arguing that there was no satisfactory explanation for the delay and that the decision below was not attended by sufficient doubt or risk of substantial injustice to warrant reconsideration on appeal.

The court was required to determine whether the applicants had provided a satisfactory explanation for the delay in lodging their appeal and whether there was sufficient doubt about the decision below or a risk of substantial injustice to warrant reconsideration on appeal. The court was also required to determine whether the applicants' purported appeal was incompetent and whether the respondents were entitled to costs.

The court held that the applicants had not provided a satisfactory explanation for the delay in lodging their appeal. The applicants had argued that the delay was due to a misunderstanding about the time within which the appeal had to be lodged, but the court found that this was not a sufficient explanation. The court also held that the decision below was not attended by sufficient doubt or risk of substantial injustice to warrant reconsideration on appeal. The court found that the decision below was well-reasoned and that there was no indication that it was wrong. The court held that the applicants' purported appeal was incompetent because it was not lodged within the relevant time period. The court granted the respondents' summons dismissing the purported appeal as incompetent and ordered the applicants to pay the respondents' costs of and incidental to the purported appeal.

The court ordered that the applicants' summons filed on 9 March 2010 be dismissed, that the applicants' purported appeal made by notice of appeal dated 22 September 2009 be dismissed as incompetent, and that the applicants pay the respondents' costs of and incidental to the purported appeal, including the directions hearing before Lansdowne AsJ on 8 February 2010, the respondents' summons of 10 March 2010, and the applicants' summons filed on 9 March 2010.

Orders

Orders of the court

1. The summons filed by the applicants on 9 March 2010 be dismissed.

2. Pursuant to r 64.03(4), ,the applicants’ purported appeal made by notice of appeal dated 22 September 2009 be dismissed as incompetent.

3. The applicants pay the respondents' costs of and incidental to the purported appeal including, without limit, the directions hearing before Lansdowne AsJ on 8 February 2010, the respondents' summons of 10 March 2010, and the applicants’ summons filed on 9 March 2010.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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