| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2023 0122 |
| TIMELIO PTY LTD (ACN 169 389 771) | Applicant |
| v | |
| ANDREW PETRIS | First Respondent |
| AND | |
| CHARLOTTE PETRIS | Second Respondent |
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| JUDGES: | BEACH, LYONS JJA and J FORREST AJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2 February 2024 |
| DATE OF JUDGMENT: | 29 February 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 17 |
| JUDGMENT APPEALED FROM: | Petris v Timelio Pty Ltd (Supreme Court of Victoria, Matthews J, 25 October 2023) |
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PRACTICE AND PROCEDURE – Appeal against summary judgment – Whether applicant’s defence has a real prospect of success – Whether primary judge erred in construction of convertible note deed – Leave to appeal refused.
PRACTICE AND PROCEDURE – Primary judge refused to grant a stay of execution on summary judgment – Where applicant has a counterclaim against the respondents – Parry v State Bank of Victoria [1989] WAR 240, considered – Leave to appeal refused.
PRACTICE AND PROCEDURE – Application to raise new arguments not raised before primary judge – New arguments on appeal only allowed in the interests of justice, a test which can only be satisfied in exceptional circumstances – Application also to adduce fresh evidence not before primary judge – Where no explanation for failure to adduce evidence before primary judge – Application refused.
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| Counsel | |||
| Applicants: | Mr J D Catlin | ||
| Respondent/s: | Mr L E P Magowan | ||
Solicitors | |||
| Applicants: | Partners Legal Solutions | ||
| Respondent/s: | FSC Law | ||
BEACH JA
LYONS JA
J FORREST AJA:
The plaintiffs (who are the respondents in this application) made claims against the defendant (‘Timelio’, the applicant in this application) for amounts alleged to be owing under two convertible note deeds dated 1 March 2022 (the ‘CN Deeds’) and a settlement deed dated 14 July 2022 (the ‘Settlement Deed’). In addition to defending these claims on the basis that no amounts were owing, Timelio counterclaimed against the respondents seeking damages for breaches of contract, misrepresentation and breach of their duties under the Corporations Act 2001 (Cth) (‘Corporations Act’).
The respondents applied for summary judgment in respect of their claims and, on 25 October 2023, a judge in the trial division granted that application in part by ordering that:
(a)Timelio pay each of the respondents:
(i)the sum of $22,000 with interest of $1,609.32 in respect of each respondent’s long service leave entitlements which were the subject of the Settlement Deed (the ‘long service leave judgment’);
(ii)the sum of $110,194.52 with interest of $5,373.87 in respect of the CN Deeds (the ‘CN Deeds judgment’); and
(b)there be no stay of execution of these judgments notwithstanding the existence of a counterclaim.
Timelio now seeks leave to appeal and (if leave is granted) to appeal the orders granting the CN Deeds judgment (proposed grounds 1 to 5). Those grounds relate, for the most part, to the construction of the terms of the CN Deeds. Timelio contends that, by reason of these matters, the judge wrongly concluded that its defence to the respondents’ claims under the CN Deeds had no real prospect of…
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- AGLC
- Timelio Pty Ltd v Petris [2024] VSCA 17
- Case
- [2024] VSCA 17
- Decision Date
CaseChat Overview and Summary
The court found that Timelio's defence did not have a real prospect of success and that the primary judge did not err in their construction of the convertible note deed. The court upheld the primary judge's decision to refuse a stay of execution on the summary judgment, reasoning that the interests of justice did not require such a stay, particularly given Timelio's counterclaim. The court further determined that new arguments and fresh evidence could only be considered on appeal if it was in the interests of justice, a test that could only be satisfied in exceptional circumstances. As Timelio had not provided a satisfactory explanation for the failure to present certain evidence before the primary judge, the application to adduce new evidence was refused.
Consequently, the appeal was dismissed, and leave to appeal was refused. The primary judgment was upheld, and the court's orders remained in effect.
Orders
Orders of the court
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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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