Weber v Carkeek - [2023] VSCA 39

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0093

PAUL WEBER	Applicant
v
EWAN CARKEEK AND OTHERS ACCORDING TO THE ATTACHED SCHEDULE	Respondents

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JUDGES:	WALKER JA and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 February 2023
DATE OF JUDGMENT:	3 March 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 39
JUDGMENT APPEALED FROM:	[2020] VSC 366 (Richards J)

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PRACTICE AND PROCEDURE – Application for leave to appeal – Where leave to appeal granted but appeal dismissed under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 – Application for extension of time under r 64.08 of Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’) – Application for security for costs under r 64.38(2) of the Rules – Whether delay in bringing application for extension of time – Whether reasons for delay sufficient – Whether granting extension of time would prejudice respondents – Application for extension of time dismissed – Costs – Application for security for costs dismissed.

Victorian Civil and Administrative Tribunal Act 1998 ss 117, 148; Supreme Court (General Civil Procedure) Rules 2015 rr 64.08, 64.38(2); Australian Consumer Law and Fair Trading Act 2012 s 21.

Leeworthy v Registrar of the Licencing Appeals Tribunal [2017] VSCA 353, applied; Winter-Cooke v Winter-Cooke (2022) VSCA 264, discussed.

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Counsel
Applicant:		The applicant appeared in person
Respondents:		Mr M Lapirow
Solicitors
Applicant:	The applicant was not represented
Respondents:	Davies Moloney

WALKER JA
J FORREST AJA:

Introduction

The applicant, Mark Weber, has for a number of years been engaged in a bitter dispute with Ewan and Lorraine Carkeek (the ‘Carkeeks’). They are the respondents to Mr Weber’s application to extend the time in which to bring an application for leave to appeal a decision of a judge of the trial division of this Court.[1]
[1]Mrs Alison Carkeek was joined by Mr Weber to his VCAT claim before the Victorian Civil and Administrative Tribunal. That part of the claim was dismissed. Mrs Carkeek has also been joined in this application but has taken no active part in it.
The dispute stems from arrangements entered into between Mr Weber and the Carkeeks in respect of the use of the Carkeeks’ property at Berringama in the high country of northern Victoria, relatively close to Corryong in the Shire of Towong.
In August 2018, their respective claims ended up at the Victorian Civil and Administrative Tribunal (‘VCAT’). These centred on the Carkeeks endeavouring to regain possession of their property and a miscellany of money claims by both parties covering rent, loans, agistment of cattle and the provision of consultancy services.
A Senior Member of VCAT made orders in both parties’ favour but most of Mr Weber’s claims were dismissed.[2]
[2]Weber v Carkeek (Civil Claims) [2018] VCAT 1944.
Mr Weber filed an application for leave to appeal the VCAT decision to the Trial Division of this Court pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’).

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.

Continue reading Weber v Carkeek

Details

AGLC: Weber v Carkeek [2023] VSCA 39
Case: [2023] VSCA 39
Decision Date: 3 March 2023

CaseChat Overview and Summary

The case of Weber v Carkeek involved an application for leave to appeal against a decision made by the Victorian Civil and Administrative Tribunal. The dispute centred around the granting of leave to appeal, which was subsequently dismissed under section 148 of the Victorian Civil and Administrative Tribunal Act 1998. The applicant sought an extension of time to bring the appeal and also requested security for costs under rule 64.38(2) of the Supreme Court (General Civil Procedure) Rules 2015. The primary issues before the court were whether the delay in bringing the application for an extension of time was justified, and if the reasons provided for the delay were sufficient. Additionally, the court had to determine if granting the extension would prejudice the respondents.

The court examined the applicant's reasons for the delay in applying for an extension of time and found that the applicant had not provided sufficient justification. The applicant's explanation for the delay was considered inadequate, and the court held that the delay had not been satisfactorily explained. Furthermore, the court found that granting the extension would cause prejudice to the respondents, as it would disrupt the proceedings and potentially delay the resolution of the case. As a result, the application for an extension of time was dismissed. Additionally, the court dismissed the application for security for costs under rule 64.38(2) of the Rules, as the applicant had not demonstrated that the respondents were likely to be unable to pay the costs if they were to be awarded.

In conclusion, the court denied the applicant's request for an extension of time to bring the appeal and dismissed the application for security for costs. The reasons provided for the delay were found to be insufficient, and granting the extension would have prejudiced the respondents. The applicant's applications under the Supreme Court (General Civil Procedure) Rules 2015 were thus unsuccessful. No further orders were made by the court in relation to the costs of the application.

Orders