Legal Research
Cases
Worldwide Enterprises Pty Ltd v Silberman

Worldwide Enterprises Pty Ltd v Silberman

Link copied

Case Copied 23 February 2010 28 min read

Contents

On this page

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCI 3767 of 2009

WORLDWIDE ENTERPRISES PTY LTD (ACN 083 154 741)	Applicant
WORLDWIDE ENTERPRISES PTY LTD (ACN 083 154 741)	v
DOV SILBERMAN	First Respondent
and
SAM CHIZIK	Second Respondent

---

JUDGES:	WEINBERG and BONGIORNO JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 February 2010
DATE OF JUDGMENT:	23 February 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 17

---

PRACTICE & PROCEDURE – Appeal from decision of VCAT to judge in Trial Division – Application pursuant to r 1.17(1) of Supreme Court (General Civil Procedure) Rules 2005 by lay director for leave to appear on behalf of applicant company – Application refused – Proceedings stayed pending appointment of solicitor – Company impecunious – Security for costs ordered – Appeal – Whether stay pursuant to r 1.17(1) final or interlocutory in character – Relationship of r 1.17(1) with ss 236 and 237 of Corporations Act 2001 (Cth) – Whether primary judge exercised discretion erroneously – Claim of bias on part of primary judge – Application for leave to appeal against costs order out of time – Application for leave to appeal against setting aside of subpoena as ‘fishing expedition’ out of time – All applications for leave to appeal dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Goodman was given limited leave to appear on behalf of the Applicant
For the First Respondent	Ms R Annesley	Wisewoulds Lawyers
For the Second Respondent	Ms R Annesley	Herbert Geer

WEINBERG JA:

The applicant, Worldwide Enterprises Pty Ltd, seeks leave to appeal from a judgment of J. Forrest J, delivered on 1 May 2009, in which his Honour, pursuant to r 1.17(1) of the Supreme Court (General Civil Procedure) Rules 2005 (‘the Rules’), stayed the applicant’s appeal from a decision at the Victorian Civil and Administrative Tribunal (‘VCAT’) until such time as it was represented by a solicitor. The applicant also seeks leave to appeal from his Honour’s order made that day that it give security for costs in the amount of $10,000.

In addition, the applicant seeks leave to appeal from an order setting aside a subpoena made by his Honour on 5 February 2009. Finally, it seeks leave to appeal, as well, from a costs order arising out of an adjournment of the proceeding made by Harper J on 6 October 2008. In each of the latter two cases, the applicant is well out of time.

This matter has had a long and somewhat tortured history. The applicant was involved in a County Court proceeding which settled, after a five day hearing, in 2006. Subsequently, the applicant and its solicitor (the first respondent), as well as the applicant and its barrister (the second respondent), had a falling out, and proceedings ensued in VCAT. These proceedings concerned the conduct of the County Court hearing, and the issue of outstanding fees.

Following an application by the respondents, VCAT determined that it had no jurisdiction over that part of the applicant’s claim that related to pecuniary losses. Accordingly, that aspect of the…

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.

Keep reading for free

Create a free CaseChat account to read Worldwide Enterprises Pty Ltd v Silberman and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] VSCA 17
Decision Date: 23 February 2010

CaseChat Overview and Summary

The case of Worldwide Enterprises Pty Ltd v Silberman involved an appeal by the applicant company against a decision of the Victorian Civil and Administrative Tribunal (VCAT) that was remitted to the judge in Trial Division. The applicant, Worldwide Enterprises, sought leave to appear on behalf of the company through a lay director, which was denied by the primary judge, who also stayed the proceedings pending the appointment of a solicitor. The company, being impecunious, was ordered to provide security for costs. The applicant appealed the decision, raising several issues concerning the nature of the stay, the relationship between certain rules and statutory provisions, the exercise of discretion by the primary judge, and claims of bias. Additionally, the applicant sought leave to appeal certain costs orders and the setting aside of a subpoena out of time.

The legal issues before the court included the characterisation of the stay under rule 1.17(1) of the Supreme Court (General Civil Procedure) Rules 2005 as final or interlocutory, the interplay between this rule and sections 236 and 237 of the Corporations Act 2001 (Cth), the correctness of the primary judge's exercise of discretion, and the validity of the claim of bias. The applicant also sought leave to appeal certain orders out of time, which was a procedural matter that needed to be addressed.

The court found that the stay was interlocutory in nature, not final, and thus appealable. It determined that the primary judge did not erroneously exercise his discretion and dismissed the claim of bias. The court held that the application for leave to appeal certain orders out of time was not successful, as it found that the applications were indeed out of time. Consequently, all applications for leave to appeal were dismissed.

The final orders of the court were that the appeal against the primary decision was dismissed, and all subsequent applications for leave to appeal were also dismissed. The stay of the proceedings pending the appointment of a solicitor remained in effect, and the order for security for costs stood as imposed by the primary judge.

Orders