Permanent Custodians Limited v Palmer - [2009] VSCA 80

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3719 of 2009

PERMANENT CUSTODIANS LIMITED (ACN 001 426 384)	Applicant
v
MICHAEL GARETH PALMER	Respondent

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APPLICATION ON SUMMONS

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JUDGES:	BUCHANAN JA and KYROU AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 and 24 April 2009
DATE OF JUDGMENT:	24 April 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 80

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APPLICATION – Notice of appeal served before leave to appeal given – Appeal incompetent – Application for leave to appeal – Leave to appeal refused.

PRACTICE AND PROCEDURE – Writ and statement of claim may be signed by a firm of solicitors in the firm’s name.

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APPEARANCES:	Counsel	Solicitors
Applicant	Mr G Moffatt	Mills Oakley Lawyers
The Respondent in person

BUCHANAN JA:

I will ask Kyrou AJA to deliver the first judgment.

KYROU AJA:

Introduction and summary

On 17 April 2009, on the application of Permanent Custodians Limited (‘Permanent’), this Court made an order under r 64.03(4) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (‘Rules’) dismissing as incompetent an appeal by Michael Palmer from an order of a judge of the Trial Division sitting in the Practice Court.

The Court made that order for the following reasons:

(a)An order refusing an application to set aside a default judgment is an interlocutory order.[1]
(b)A party seeking to appeal from such an order to the Court of Appeal requires leave to do so.[2]
(c)As Mr Palmer has not been granted leave to appeal from the order of the Practice Court judge, his purported appeal was incompetent[3] notwithstanding any advice to the contrary Mr Palmer may have received from Registry staff.[4]

[1]Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246.

[2]Supreme Court Act 1986 (Vic) s 17A(4)(b).

[3]Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 64.03(4); Little v Victoria [1998] 4 VR 596, 597.

[4]Mr Palmer deposed to a conversation between himself and a member of the staff of the Court of Appeal Registry in which he was informed that the order he sought to appeal was a final order and that he therefore did not require leave to appeal.

Today, Mr Palmer made an oral application for leave to appeal. For the reasons given below, I would dismiss the application.

Background

On 30 May 2008, Permanent filed a writ against Virgin Investments Pty Ltd

(‘Virgin’) and Mr Palmer. Permanent alleged that it had advanced money to Virgin pursuant to a loan agreement, that Virgin provided a mortgage over certain land in favour of Permanent to secure the advances, that Mr Palmer agreed to guarantee Virgin’s obligations under the loan agreement and mortgage, and that Virgin subsequently defaulted in respect of payments due under the loan agreement and mortgage. On 11 July 2008, Permanent obtained default judgment against Virgin for possession of the relevant land and payment of the outstanding advances.

On 11 February 2009, an associate judge dismissed a summons issued by Mr Palmer on behalf of Virgin seeking the setting…

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: [2009] VSCA 80
Decision Date: 24 April 2009

CaseChat Overview and Summary

The matter before the court involved an application for leave to appeal a decision, where the appeal was lodged before the leave was granted. The appellant was Permanent Custodians Limited and the respondent was Palmer. The dispute centred on the procedural aspects of an appeal, specifically whether the appeal was valid when the notice of appeal was served before the leave to appeal was granted. The case was heard in the court of appeal.

The primary legal issue before the court was whether the appeal was competent when the notice of appeal was served prior to the grant of leave to appeal. The court was required to determine if this procedural irregularity rendered the appeal invalid. Additionally, the court needed to decide whether the firm of solicitors could sign the writ and statement of claim in the firm's name, as this was also a point of contention in the case.

In addressing the issues, the court found that the notice of appeal must be served after the leave to appeal is granted, and serving it earlier makes the appeal incompetent. The court upheld the principle that adherence to procedural rules is crucial for the validity of an appeal. Regarding the writ and statement of claim, the court confirmed that it was permissible for a firm of solicitors to sign these documents in the firm's name. The court's decision was based on the established practice and procedure in the Australian legal system.

The court ultimately refused the application for leave to appeal. This decision was based on the finding that the appeal was incompetent due to the procedural irregularity in the service of the notice of appeal. Consequently, the appeal was dismissed, and no further proceedings could be initiated in this matter.

Orders