Rodi v Gelonesi

Case [2012] NSWCA 424

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Rodi v Gelonesi [2012] NSWCA 424
Hearing dates:5 December 2012
Decision date: 05 December 2012
Before: Beazley JA at [1]
Ward JA at [2]
Decision:

Grant leave to extend the time for the filing of the summons for leave. Dismiss the summons for leave to appeal with costs

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - application for leave to extend time for filing of summons seeking leave to appeal

APPEAL - summons seeking leave to appeal - trial judge found no misrepresentation established as there was no reliance - contended by appellant that that finding was glaringly improbable - no substantial issue of principle - small amount in dispute
Legislation Cited: Fair Trading Act 1987 (NSW)
Trade Practices Act 1974 (Cth)
Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 756
Darrell Lea (Vic) Pty Ltd v Union Assurance Society of Australia Ltd [1969] VR 401
Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
Dunn v Ross Lamb Motors [1978] 1 NSWLR 26
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564
Minogue v Williams (2000) 60 ALD 366
Niemann v Electronic Industries Ltd [1978] VR 431
Nominal Defendant v McLennan [2012] NSWCA 148
Zelden Sewell Henamast Pty Ltd [2011] NSWCA 56
Category:Principal judgment
Parties: Dominic Rodi (First Appellant)
Forestway Fruit Stall Pty Ltd (Second Appellant)
Bruno Gelonesi (First Respondent)
Northside Deli Pty Ltd (Second Respondent)
Representation: Counsel:
P Newell (Appellants)
B Pluznyk (Respondents)
Solicitors:
L C Muriniti & Associates (Appellants)
GP Legal, Solicitors (Respondents)
File Number(s):CA 12/176970
 Decision under appeal 
Date of Decision:
2012-05-11 00:00:00
Before:
E Olsson SC DCJ
File Number(s):
08/317684

Judgment (EX TEMPORE)

  1. BEAZLEY JA: Ward JA will deliver the first judgment.

  1. WARD JA: The application before this Court is a summons seeking leave to appeal from the decision of Olsson SC DCJ dismissing proceedings brought by the applicants for damages under the Trade Practices Act 1974 (Cth) and/or the Fair Trading Act1987 (NSW) in relation to alleged misleading and deceptive conduct (and unconscionable conduct) occurring in the context of a proposed sale to the first applicant or his company of a fruit and vegetable business then operated by the respondents.

  1. The sale did not proceed. However, during the course of negotiations in relation to the sale the applicant took over the operation of the business (under what the respondent…

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AGLC
Rodi v Gelonesi [2012] NSWCA 424
Case
[2012] NSWCA 424
Decision Date

CaseChat Overview and Summary

The appeal before Beazley and Ward JJA concerned an application for leave to extend the time for filing a summons seeking leave to appeal. The underlying dispute involved a trial judge's finding that no misrepresentation had been established due to a lack of reliance by the appellant. The appellant contended that this finding was "glaringly improbable."

The primary legal issue before the Court of Appeal was whether the appellant had demonstrated a sufficient basis to warrant an extension of time to pursue an appeal. This required the Court to consider whether there was a substantial issue of principle to be argued on appeal, particularly given the relatively small amount in dispute.

The Court's reasoning focused on the appellant's failure to establish a substantial issue of principle. While acknowledging the appellant's assertion of improbability regarding the trial judge's finding, the Court found that this contention, in the context of the overall case and the limited sum involved, did not rise to the level of a substantial point of law or principle that would justify granting leave to appeal.

Consequently, the Court granted leave to extend the time for the filing of the summons for leave to appeal, thereby permitting the formal application to be lodged. However, the Court then dismissed the summons for leave to appeal itself, ordering that the appellant pay the costs of the proceedings.

Orders

Orders of the court

Grant leave to extend the time for the filing of the summons for leave. Dismiss the summons for leave to appeal with costs

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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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