Shaw v Yarranova Pty Ltd - [2013] VSC 200

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2003 09046

JOHN RASHLEIGH SHAW	Plaintiff
v
YARRANOVA PTY LTD (ACN 077517 616) AND ANOR	Defendants

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JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 APRIL 2013
DATE OF RULING:	11 APRIL 2013
CASE MAY BE CITED AS:	SHAW v YARRANOVA PTY LTD
MEDIUM NEUTRAL CITATION:	[2013] VSC 200

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Practice and Procedure – appeal from associate judge – summons to set aside perfected order of an associate judge assessing damages payable on an undertaking to the court – plaintiff contending fresh evidence showed the assessment was obtained by fraud – appropriate procedure – whether claim has any real prospect of success - summary dismissal – s 63 Civil Procedure Act 2010 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Appeared in person
For the Defendants	Mr A J Kelly SC	Arnold Bloch Leibler

HIS HONOUR:

This is an appeal from the order of Associate Justice Mukhtar made on 18 October 2012. The notice of appeal was filed on 22 October 2012, within time, and appeals the whole of the order that was made by the associate judge, which has been duly authenticated. The associate judge made orders on two summons. The first was a summons filed by the appellant/plaintiff on 4 September 2012, and the second summons was filed on behalf of the respondents/defendants on 26 September 2012. The appellant's summons sought the following relief.

(1)The court set aside the orders of Associate Justice Daly dated 7 March 2008 in Proceeding 9046 of 2003 on the grounds that there is fresh evidence and that they were procured on the basis of false and misleading affidavits and fraud.
(2)The defendants repay with penalty interest, all moneys paid to them by the plaintiff as a result of the orders set aside.
(3)The defendants pay costs, expenses and damages incurred by the plaintiff due to the enforcement of orders and in defending applications and enforcement actions made by the defendants in relation to the orders set aside. Such costs, expenses and damages to be assessed by the court.

The summons that was filed on behalf of the defendants sought to set aside two subpoenas that had been issued and served. The first was directed to the proper officer of the first defendant, Yarranova Pty Ltd, requiring that person to attend and give evidence and produce the documents specified in the schedule. The schedule specified four categories of documents as follows.

(1)All documents, minutes of directors meetings, company articles of association and company ASIC compliance records, including but not limited to, statements and memoranda, relating to the identity of, and the authority of the owners of Yarranova Pty Ltd during the period 1 May 2000 to 30 July 2008.
(2)All financial statements, documents, letters, emails and file notes including, but not limited to, statements and memoranda relating to losses and legal expenses incurred by Yarranova as a result of the caveat lodged on behalf of…

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: [2013] VSC 200
Decision Date: 11 APRIL 2013

CaseChat Overview and Summary

In the case of Shaw v Yarranova Pty Ltd, the plaintiff sought to appeal a decision made by an associate judge in the County Court of Victoria. The dispute centred on the assessment of damages payable on an undertaking to the court. The plaintiff argued that the associate judge's assessment was obtained by fraud and sought to set it aside. The primary issue for the court was to determine the appropriate procedure for such an application and whether the claim had any real prospect of success.

The court examined the relevant provisions of the Civil Procedure Act 2010 (Vic) to assess the appropriate course of action. The court needed to determine if the plaintiff's application for leave to appeal had any real prospect of success and if it could be summarily dismissed under section 63 of the Act. The court considered the evidence presented and the arguments made by the parties, focusing on the allegations of fraud and the likelihood of success of the appeal.

After carefully considering the arguments and evidence, the court concluded that the plaintiff's application did not have a real prospect of success. The court determined that the appropriate procedure was to summarily dismiss the application under section 63 of the Civil Procedure Act 2010 (Vic). Consequently, the plaintiff's appeal was dismissed, and the order of the associate judge remained in place.

In summary, the court found that the plaintiff's application to set aside the associate judge's order did not have a real prospect of success and was appropriately dismissed under section 63 of the Civil Procedure Act 2010 (Vic).

Orders