Wolfe v Breasley

[2011] VSCA 205

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2011 0024

RICHARD WEBSTER WOLFE

v

GAYLE NICOLE BREASLEY

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JUDGES:	BUCHANAN JA and SIFRIS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 July 2011
DATE OF JUDGMENT/ORDER:	15 July 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 205
JUDGMENT APPEALED FROM:	Wolfe v Breasley [2010] VCC 1988

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APPEAL – Procedure – Extension of time within which to appeal from decision of Judge of the County Court of Victoria – County Court Act 1958 (Vic) s 74(2A) – Substantial delay in bringing appeal – No satisfactory explanation for delay – No arguable case demonstrated.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr O N Scoullar-Greig	George Erlichster
For the Respondent	Mr J J Isles with Mr D J Cole	Einsiedels Solicitors

BUCHANAN JA:

1. I will ask Sifris AJA to deliver the first judgment in this matter. 

SIFRIS AJA:

1. The applicant and the respondent were in a de facto relationship during the period October 1994 to November 2007.  During the relationship, the parties purchased two properties, 17 Main Street, Pascoe Vale (‘17 Main Street’) and 19 Main Street, Pascoe Vale (‘19 Main Street’).

1. In 2009, after the relationship broke down, the respondent commenced proceedings in the County Court of Victoria seeking orders that the assets of the relationship be distributed between the parties pursuant to the Relationships Act 2008 (Vic)(‘De Facto Property Proceeding’).

1. On or about 26 August 2009 at a case conference, the parties signed a handwritten document styled 'Terms of Settlement' which purported to provide for the division of their net assets(‘the Agreement’).

1. On 16 February 2010, an order was made dismissing the De Facto Property Proceeding with a right of reinstatement.

1. Some time later, a dispute arose between the parties as to the enforceability of the Agreement. On 7 May 2010, the respondent successfully applied to have the De Facto Property Proceeding reinstated claiming, amongst other things, that the Agreement was vague and uncertain and therefore unenforceable. The De Facto Property Proceeding was set down for trial on 20 September 2010.

1. The trial commenced on 20 September 2010 but was adjourned at the request of the applicant who, on 15 October 2010, was given leave to commence a separate proceeding against the respondent in the County Court seeking declarations to the effect that the De Facto Property Proceeding had been settled in accordance with the Agreement (‘Terms of Settlement Proceeding’).

1. Judge Saccardo heard and determined the Terms of Settlement Proceeding.  His Honour delivered reasons for judgment on 7 December 2010 (‘Judgment’) and dismissed the applicant's claim holding, amongst other things, that the Agreement was so vague and uncertain that it was unenforceable and should be set aside.

1. On 25 February 2011, the applicant filed a notice of appeal and the summons giving rise to this application.  Under the County Court Act 1958 (Vic) any notice of appeal was required to be filed on or before 21 December 2011. Accordingly, the applicant requires and now seeks leave to appeal.

1. Section…