Plaintiff v Defendants

Supreme Court of Victoria|2008-12-01|Before: Hollingworth J

PRACTICE AND PROCEDURE - Appeal from Master - Whether to extend time for appeal - Whether to grant leave to appeal - Further evidence sought to be relied upon - Whether judgment "irregular" - Whether any arguable defence raised - Supreme Court Act 1986 s 17A, Supreme Court (General Civil Procedure) Rules 2005 rr 2.01, 2.04, 21.07, 22.02, 22.03, 22.08, 22.15, 46.02, 77.05.

2 In May 2006, Master Evans entered judgment against the defendants, including the second defendant, Ms Narain. He did so on the basis of a consent to judgment, contained in a deed of settlement executed by all parties.

3 Almost two years later, in early April 2008, Master Daly ordered that the Evans judgment be set aside as against Ms Narain, and made orders for the further conduct of the proceeding against her.

4 In May 2008, Robson J allowed an appeal against the Daly orders, the effect of which was to leave the Evans judgment to stand.

5 Ms Narain then filed the present appeal against the Evans judgment. The appeal came on before me in the Practice Court on 22 May 2008. In the course of argument, I expressed concern as to whether I might be bound by some of Robson J's findings, and gave the parties leave to deliver further written submissions on that topic. I reserved my decision.

6 In the meantime, in June 2008, Ms Narain filed an application for leave to appeal against the Robson orders. I deferred delivering my decision, pending the hearing of any appeal against the Robson orders as, depending on its outcome, the appeal before me might be completely redundant.

7 On 18 June 2008, the Court of Appeal adjourned the hearing of the application for leave to appeal against the Robson orders, until after my decision was handed down, so that it could determine any appeal against my orders at the same time as the appeal against the Robson orders.[1]

(a) Whether to extend the time for appealing against the Evans judgment;

(b) Whether to grant leave to appeal, if it is required;

(d) Whether I should allow the appeal on the basis that the Evans judgment was irregularly entered; and

(e) Whether I should allow the appeal on the basis that Ms Narain has demonstrated an arguable defence.

9 Golden Dragon Abalone Pty Ltd is a company which is now in liquidation. Ms Narain and the first defendant, Mr Michael, owned shares in Golden Dragon. Ms Narain was also a director and the secretary of Golden Dragon. The third defendant, Mr Narain, is Mrs Narain's husband.

10 In late 2004, Euroasia lent Golden Dragon $500,000 as working capital.

11 In late January or early February 2005, Euroasia entered into an agreement with Golden Dragon, Mr Michael and Ms Narain, whereby Euroasia would buy 50% of the issued share capital in Golden Dragon from Mr Michael and Ms Narain ("the share agreement").

12 Euroasia subsequently paid Golden Dragon a further $1,000,000.

13 The share agreement was subject to a number of conditions precedent, none of which was fulfilled. Euroasia also became aware that Golden Dragon did not beneficially own its business, so the shares were of no value to Euroasia.

14 As the share transfer did not occur, the $1,500,000 paid to Golden Dragon became immediately repayable. In order to avoid having to immediately repay that sum, Golden Dragon (as borrower) and the defendants (as guarantors) entered into an agreement under which they agreed to pay Euroasia $1,500,000 plus interest ("the loan agreement").

15 Neither interest nor principal was paid under the loan agreement, despite demands on Golden Dragon and the defendants.

16 Euroasia commenced this proceeding against the defendant guarantors on 23 August 2005, claiming the sum of $1,621,519.97, being $1,500,000 principal plus interest to that date, together with further interest and costs.

17 On 20 September 2005, each of the defendants entered an appearance through the firm of solicitors, Beveridge Eaton Lawyers. Mark Eaton was the solicitor at that firm who acted for the defendants in this and other proceedings, until about August 2007.

18 On 19 October 2005, the defendants delivered their defence. The defence admitted the execution of the share and loan agreements. However, it alleged, amongst other things, that Citrofresh Pty Ltd (a company in which Mr Michael and Mr Narain were directors) had paid the sum of $100,000 to Euroasia and directed that those funds be treated as monies paid by Golden Dragon; therefore, Golden Dragon was not in default under the loan agreement.[2]

19 The parties entered into a deed of settlement dated 28 October 2005 ("the first deed of settlement"), under which the defendants and Golden Dragon agreed to pay Euroasia the sum of $1,641,034.25 (being the amount claimed in the proceeding, plus a further $20,000 which was described as an "ex gratia payment"). Payment was to be made by instalments, the first to be paid upon execution of the deed and the last on 15 March 2006 (cl 1).

20 Ms Narain signed the first deed of settlement in her personal capacity and as a director of Golden Dragon.

21 The first deed of settlement provided that, in the event of a default in payment, Euroasia could serve a notice of default, giving the defendants 14 days to remedy the default (cl 2.1).

22 If a notice of default was not complied with, Euroasia would be entitled to enter judgment in this proceeding against the defendants for the amount then outstanding, together with interest and costs (cl 2.2(b)).

23 The first deed of settlement contained the following clause (cl 2.2(f)), which applied in the event of non-compliance with a notice of default:

This document executed by the parties will constitute the irrevocable consent of each of the parties to the entry of judgment in [this proceeding] ... and the production of this document to Court will be conclusive evidence of all necessary consents to give effect to clauses 2.2(a), 2.2(b), 2.2(c) and 2.2(d) including consent (if necessary) to have the applications for judgment before the Court and for the entitlement of [Euroasia] to apply for judgment in [this proceeding] ... and to enter such judgment in [this proceeding] ...

24 On 15 November 2005, before the date fixed for the first directions hearing, Euroasia's solicitors advised the court that the proceeding had settled. They sent the court signed consent orders, agreeing that the proceeding be struck out with a right of reinstatement. In later correspondence with the court, Euroasia's solicitors explained that the orders were sought in that form because the parties had agreed that if there was a default in compliance with the first deed of settlement, Euroasia would be entitled to reinstate the proceeding and enter judgment.

25 For reasons which are not apparent from the file, it appears that the court did not actually make orders striking out the proceeding.

26 On 3 January 2006, Euroasia filed a notice directing the Prothonotary to produce the file to a master on 9 February 2006. An affidavit of Bee Kok Peh, one of Euroasia's directors, sworn on 30 December 2005, was filed in support of the application for judgment. The affidavit included particulars of the default in payment of an instalment due under the first deed of settlement. The affidavit stated that copies of a notice of default had been served on the defendants and Golden Dragon on 1 December 2005, and not complied with.

27 Euroasia was the only party to appear before the master on 9 February 2006. The hearing was adjourned for three weeks to enable Euroasia to prove proper service of the notices of default.

28 The hearing was adjourned on three further occasions; on the last, the matter was adjourned to a date to be fixed.[3] During this period, the parties were attempting to negotiate a further settlement of the dispute. It appears that at least one further settlement agreement was reached between the parties, in February 2006.

29 On 24 April 2006, after the defendants allegedly breached the February settlement agreement, Euroasia wrote to the court requesting the matter be re-listed.

30 On 12 May 2006, the matter came before Master Evans. Euroasia's solicitor appeared. The defendants were not represented, although it is clear from the following evidence that they had notice of the hearing on that date.

31 On 7 February 2006, the defendants' solicitors had been served with a copy of the notice to produce, and the affidavits relied upon by Euroasia in support of its application for judgment. They were subsequently served with two versions of a proposed amended statement of claim, including the document which Euroasia was eventually granted leave to file. There is no evidence as to whether the defendants' solicitors were formally advised of each adjourned date, however, they were advised, at the very least, of the final hearing before Master Evans on 12 May 2006.[4]

32 Ms Narain's current solicitor, Michael Main, has deposed that Mr Narain told him that the reason the defendants did not appear on 12 May 2006 was because their former solicitor, Mr Eaton, had advised Mr Narain that it would be "useless" to do so, as neither Mr Narain nor Ms Narain had an arguable defence.

33 At the hearing on 12 May 2006, Euroasia was granted leave to amend its statement of claim to plead the entry into, and the defendants' breach of, the first deed of settlement. Master Evans ordered that judgment be entered against the defendants in the sum of $1,116,034.25, plus interest in the sum of $169,000.54. The defendants were also ordered to pay Euroasia's costs of the proceeding, including the costs of the application to enter judgment, on an indemnity basis.

The application to set aside the Evans judgment

34 There was no activity in the proceeding for almost two years, until 12 March 2008, when Ms Narain issued a summons seeking to set aside the Evans judgment.

35 In a relatively brief affidavit filed in support of that application, sworn on 12 March 2008, Ms Narain deposed that: she had little business experience; she did not understand the meaning of the loan agreement, and signed it at the request of her husband, on the basis of his assertion that it was "a formality"; she received no personal benefit from the loan agreement; she was unaware of its legal effect; although she was represented by the same solicitors as her husband and Mr Michael, she had never personally instructed them; and she was not represented in court when the Evans judgment was entered. However, this affidavit did not address the execution of the first deed of settlement, upon which the Evans judgment had been entered.

36 Ms Narain's new solicitor, Mr Main, deposed in his affidavit of 1 April 2008 that he believed that Ms Narain had a meritorious defence, based upon the well-known equitable principles of unconscionability enunciated in Garcia v National Australia Bank Ltd.[5] Exhibited to his affidavit was a proposed amended defence, which pleaded material facts relevant to a Garcia defence in relation to the loan agreement. The proposed pleading also alleged that the first deed of settlement was void and of no effect because of the circumstances surrounding the execution of the loan agreement (rather than those surrounding the execution of the first deed of settlement).

37 Ms Narain's application to set aside the Evans judgment seems to have been prompted by developments in other proceedings brought against her by Euroasia. In mid 2006, Euroasia had commenced bankruptcy proceedings against Mr and Ms Narain, relying on the Evans judgment. In September 2006, the Narains entered into yet another settlement agreement with Euroasia. Although some payments were made, it seems that the Narains failed to comply fully with the latest settlement agreement. Further bankruptcy notices were served. Euroasia obtained a sequestration order against Mr Narain on 21 December 2007. Euroasia served a further creditor's petition on Ms Narain on 5 March 2008. Ms Narain was able to obtain an adjournment of that petition, because she filed the application to set aside the Evans judgment on 12 March 2008.

38 Euroasia filed an affidavit of its solicitor, Angela Nunn, sworn on 31 March 2008, in opposition to the application to set aside the Evans judgment. That affidavit included a history of the proceeding in this court and the bankruptcy proceedings, as well as evidence as to Ms Narain's various other company directorships and offices.

39 On 11 April 2008, Master Daly set aside the Evans judgment as against Ms Narain, and made consequential orders for amended pleadings. She purported to do so under r 22.15, which empowers the court to set aside or vary a judgment given against a party who does not attend the hearing of an application under r 22.02 (summary judgment on plaintiff's claim) or r 22.08 (summary judgment on counterclaim).

40 Master Daly held that although Ms Narain may face substantial hurdles in doing so, it was at least arguable that her Garcia defence may succeed. The master expressed some concern that there had been a delay of up to nine months from the time when Ms Narain first became aware of her entitlement to set aside the Evans judgment and the application; however, she found that Euroasia had not established that undue prejudice had been caused to it by that delay.

41 On 14 April 2008, Euroasia filed a notice of appeal against the Daly orders. On 13 May 2008, Robson J allowed the appeal and set aside the Daly orders, save for the order that Ms Narain pay Euroasia's costs on a solicitor-client basis.

42 Robson J held that Euroasia had not applied for summary judgment under r 22.02; rather, it had moved for judgment on an agreement of compromise, a procedure which he described as "well-recognised by this court".[6] Accordingly, he held that Ms Narain ought to have sought an extension of time to appeal the Evans judgment, rather than applying to set it aside under r 22.15.[7]

43 However, his Honour said that, even if Ms Narain had adopted the correct procedure, he would not have found in her favour on the substantive question of whether she had an arguable defence to Euroasia's claim.

44 By notice of appeal filed on 15 May 2008, Ms Narain adopted the procedure suggested by Robson J. She now seeks to appeal the Evans judgment. As the time for such an order had long since expired, Ms Narain seeks an order extending the time to appeal. She also seeks special leave to rely in the appeal upon three affidavits which were not before Master Evans.

45 There is a dispute as to whether Ms Narain needs leave to appeal and, if so, whether it should be granted.

46 An appeal to a judge from a judgment given or order made by a master is available by right except where the order is as to costs or is made or given by consent. In those latter instances, leave of a judge or the master is required.[8]

47 Euroasia argues that because the Evans judgment was entered based on the defendants' consent under cl 2.2(f) of the first deed of settlement, leave is required.

48 Ms Narain argues that, because of her Garcia defence, Euroasia's entitlement to rely on the first deed of settlement is itself in issue; therefore, no leave to appeal is required. Alternatively, if leave is required, then it is sought.[9]

49 The Evans judgment was obtained based on the consent to judgment contained in cl 2.2(f) of the first deed of settlement. It is properly characterised as a judgment or order made or given by consent; accordingly, leave to appeal is required.

50 The general rule is that leave to appeal will be refused unless the applicant can show that the decision was wrong, or at least attended with sufficient doubt to justify the grant of leave, and that substantial injustice would be done if the decision were to stand.[10]

51 However, that general rule is not absolute, and the circumstances here are highly unusual. Were this appeal the only challenge to the Evans judgment, I would not grant leave, as I am not persuaded that Ms Narain has demonstrated an arguable defence to Euroasia's claim based on the first deed of settlement. However, interposed between the Evans judgment and this appeal are the application to Master Daly and the appeal against the Daly orders. An application for leave to appeal against the Robson orders has been filed, and it seems inevitable[11] that my decision will also be the subject of appeal, whatever its outcome.

52 Given the procedural morass into which this proceeding has, unfortunately descended, I have decided that the fairest and most efficient course for me to take is to grant leave to appeal, and to determine all issues arising before me on the appeal. Hopefully, that will enable the Court of Appeal which hears both appeals to determine once and for all whether the Evans judgment should stand.

53 Whether the application to Master Evans is regarded as having been made with or without notice (itself a matter in issue), the time for filing a notice of appeal undoubtedly expired in May 2006.[12] Ms Narain seeks an order extending the time to appeal until 15 May 2008, under r 77.05(6).

54 Master Daly and Robson J both considered the question of delay, in considering the matters before them.

55 Master Daly found that Ms Narain had become aware of her entitlement to set aside the Evans judgment on Garcia grounds as early as June 2007, but took no action to do so until March 2008. The master said that Ms Narain's explanation - that she believed her husband had been taking steps to satisfy the judgment debt - was not entirely satisfactory. However, there was no evidence that Euroasia had suffered any undue prejudice as a result of the delay. Interest would continue to run on the judgment debt in the event that Ms Narain's defence was unsuccessful, and Ms Narain had given evidence that her personal assets were substantial.[13]

56 Robson J said that, had he otherwise found in Ms Narain's favour, he would not have found against her merely on the grounds of delay and prejudice.[14]

57 Master Daly and Robson J having been prepared to excuse the delay from June 2007 until March 2008, I see no reason on the material before me to do otherwise.

58 Robson J delivered his reasons for decision on 13 May 2008. They indicated that the proper procedure was to appeal against the Evans judgment. Only two days later, Ms Narain filed the present notice of appeal against the Evans judgment. Accordingly, there has been no further delay on her part.

59 I will extend the time for Ms Narain to bring the appeal.

60 The parties are entitled as of right to rely on the following affidavits, all of which were before Master Evans:

(a) Affidavits of Bee Kok Peh, director of Euroasia, sworn on 30 December 2005, 8 February 2006, 21 February 2006 and 9 May 2006, setting out the terms of the first deed of settlement, the defendants' default, and the amount claimed by Euroasia. The later affidavits update the interest calculations;

(b) An affidavit of Euroasia's solicitor, Angela Nunn, sworn on 12 May 2006, deposing to the fact that payment of the sum demanded by Euroasia had not been paid to its solicitors; and

(c) Various other affidavits of service of the notice to produce and supporting affidavits, the proposed amended pleadings, and notices of default.[15]

61 The defendants filed no affidavit material before the Evans judgment was entered.

62 The parties require special leave to rely on any further evidence at the hearing of this appeal.[16] Because an appeal from a master is an appeal de novo[17], the requirement for special leave is imposed in order to discourage parties from using the hearing before the master as "a dry run", in order to test the evidence.[18] Ordinarily, special leave will not be granted unless the evidence is new or of a kind which was not or could not have been in contemplation when the case was before the master.

(a) The three-page affidavit sworn by her on 12 March 2008 ("the first Narain affidavit"), which refers to the circumstances surrounding her execution of the loan agreement, the extent of her contact with her former solicitors, and her business knowledge and experience;[19]

(b) An affidavit sworn by her on 22 April 2008 ("the second Narain affidavit"), which seeks to explain the delay between her becoming aware of the Evans judgment and applying to set it aside. It also deals, albeit briefly, with the circumstances surrounding her execution of the first deed of settlement; and

(c) The affidavit sworn by her new solicitor, Michael Main, on 1 April 2008 ("the Main affidavit"), which details the circumstances which give rise to his belief that Ms Narain has a Garcia defence, and sets out instructions he received from Mr and Ms Narain in relation to their dealings with their former solicitors.[20]

64 The first Narain affidavit and the Main affidavit were both relied upon before Master Daly. Ms Narain was entitled to rely on them as of right on that occasion, as they were filed in support of her application to set aside the Evans judgment.

65 The second Narain affidavit was filed after Master Daly handed down her reasons for decision. Robson J granted special leave to Ms Narain to rely on the second Narain affidavit in the appeal before him.

66 As none of these three affidavits was before Master Evans, Ms Narain requires special leave in order to rely upon them at the hearing of the appeal against the Evans judgment.

67 Euroasia resists special leave being granted in relation to all three affidavits. However, it only gave reasons for its objection to the second Narain affidavit. Because this affidavit contains the first and only attempt by Ms Narain to address the first deed of settlement, Euroasia says that the circumstances in which the second Narain affidavit came about "invite close scrutiny as to its cogency". But, this is not a ground upon which to reject special leave to rely upon the affidavit; rather, if accepted, such an argument goes to the weight I may attribute to its contents.

68 Ms Narain has explained why she did not put any evidence before Master Evans. The evidence before the court (such as it is) is that the application for judgment was not defended because of legal advice that the defendants had no defence. Ms Narain appears to have had little (if any) real involvement in making the decision not to defend the application. She has now received legal advice from her new solicitor that she may have a defence. In the circumstances, I do not regard the hearing before Master Evans as involving an impermissible attempt by the defendants to test the evidence against them, before deciding whether to lead any evidence on an appeal.

69 Accordingly, I will grant special leave to rely on the first and second Narain affidavits and the Main affidavit.

70 If special leave is granted to Ms Narain to rely upon her affidavit material, then Euroasia seeks special leave to rely on two affidavits of its solicitor, Ms Nunn, sworn on 31 March 2008 and 21 May 2008, respectively:

(a) The March Nunn affidavit was relied on in the hearings before Master Daly and Robson J, and provides a summary of the matters before Master Evans, and the steps taken by Euroasia following entry of the Evans judgment; and

(b) The May Nunn affidavit was prepared only for this appeal. It deals with inquires made of Registry staff regarding the procedure for entry of judgment. Ms Nunn says she was advised that it would be necessary to file a notice to produce with an affidavit in support of the orders sought, and that the application could be brought before the master ex parte.

71 Ms Narain did not address me on whether Euroasia should be granted special leave to rely on the March Nunn affidavit. The affidavit deals primarily with matters which occurred during the hearing before Master Evans and after the Evans judgment, which could not have been in evidence at the hearing before him. In so far as it responds to the affidavits which Ms Narain has been given special leave to rely upon, fairness requires that Euroasia be allowed to respond to that evidence. I will grant special leave to Euroasia to rely on the March Nunn affidavit.

72 Ms Narain does oppose Euroasia being granted special leave to rely on the May Nunn affidavit, because the advice of Registry staff is not determinative of the correct procedure under the rules for the entry of judgment. I accept that it is for a judicial officer, not Registry staff, to determine what is the appropriate procedure, and would not receive the May Nunn affidavit as evidence as to the correct procedure. However, the affidavit does explain why Euroasia made the application to Master Evans in the form in which it did. If it were necessary for me to consider why a notice to produce was used, instead of a summons, I would grant special leave to rely on the May Nunn affidavit.[21]

73 Ms Narain says that her appeal should succeed because:

(a) The Evans judgment is irregular, because the application for judgment was not made by summons; and

74 Considerable time was spent addressing me as to whether the Evans judgment was entered "irregularly". I will briefly explain how the matter was argued, before explaining why I have concluded that the argument must fail.

75 Ms Narain's argument may be summarised as follows. The application before Master Evans was akin to the procedure for summary judgment under r 22.02. Rule 22.03 requires that an application under r 22.02 be made by summons. The application to the master was made by notice to produce, not summons. Even though Ms Narain's solicitors had been informed of the application, had received all relevant material and had advised that there was no defence, the failure to proceed by way of summons nevertheless renders the Evans judgment "irregular". She argues that the appeal should therefore succeed as of right (ex debito justitiae), irrespective of the merits. There are a number of problems with this argument.

76 First, Ms Narain has already argued, unsuccessfully, before Robson J that the application before Master Evans was akin to a summary judgment application. His Honour rejected that argument, holding that Euroasia had properly moved for judgment on an agreement of compromise, not under order 22.[22] That finding is binding, unless the Court of Appeal overturns it.

77 Secondly, even if Robson J were wrong in coming to that conclusion, this is an appeal, not an application to set aside the Evans judgment. Whether a judgment was regularly or irregularly entered may be relevant in the hearing of an application to set aside a judgment entered in default of appearance or pleading.[23] Although, even in an application to set aside a default judgment, "mere irregularity" may not automatically lead to it being set aside. As Chernov J remarked in Australia and New Zealand Banking Group Ltd v Kostovski[24]:

... it is no longer the law (assuming that it ever was the law) that merely because the judgment was irregularly obtained, the defendant is entitled as of right to have that judgment set aside. Rule 2.01 and, arguably, the court's inherent jurisdiction, empower the court to disregard an irregularity such as that arising for consideration here if the justice of the situation warrants it. It is not essential that the court first make an actual order that the irregularity be corrected before it can proceed to examine the substance of the matter. It can, in appropriate circumstances, disregard the irregularity. This conclusion is supported by what Ormiston and O'Bryan JJ said in National Australia Bank Ltd v Meehan[25] and by the decision of the Court of Appeal in Metroinvest Anstolt v Commercial Union Acceptance Co plc[26].

78 This is not an application to set aside a judgment. This is an appeal de novo. It is not necessary for Ms Narain to demonstrate error on the part of Master Evans, or irregularity in the entry of the Evans judgment. Rather, I am required to decide whether, on the evidence currently before the court, judgment should be entered. That requires a consideration of the merits of Ms Narain's proposed defence.

79 Thirdly, even if, contrary to all of the above, it were possible and appropriate for me to consider the question of regularity, I would excuse any non-compliance by Euroasia, for the following reasons.

80 Rule 2.01 provides that a failure to comply with the rules is an irregularity and does not render any step or judgment a nullity. Rule 2.04 permits the court to dispense with the requirements of the rules, either before or after the occasion for compliance arises.

81 Even if the application before Master Evans was required to be made by summons[27], I would dispense with that requirement in this case. The primary purpose of a summons is to give notice to another party of the nature of a proposed application and the time at which it will be heard, so as to afford that other party an opportunity to appear and be heard. As mentioned earlier, there is absolutely no doubt that the defendants' solicitors were served with relevant documents and were well aware of the nature of the proposed application and when it would be heard. A conscious choice was made not to appear, based on legal advice. There is also no evidence to suggest that Euroasia acted unfairly in the way in which it obtained the Evans judgment. In the circumstances, the justice of the case would not require that the Evans judgment be set aside merely because the application was made by notice to produce, not summons.

82 It follows that the argument that the appeal should be allowed as of right, on the ground of irregularity, must fail.

83 As already mentioned, the principal finding of Robson J was that Ms Narain should have sought to appeal the Evans judgment, not to set it aside. Given that finding, it was not strictly necessary for his Honour to consider the merits of Ms Narain's proposed defence. Nevertheless, his Honour went on to consider the evidence before him, before concluding that he was not satisfied that Ms Narain had established an arguable defence to the enforcement of the first deed of settlement.

84 I accept that Robson J's views as to the merits of the proposed defence were made by way of obiter dicta, do not give rise to any relevant estoppel, and are not binding on me.

85 Nevertheless, as a matter of judicial comity, a judge at first instance will usually follow the decision of another judge of first instance, of a coordinate jurisdiction, unless convinced that the judgment was wrong. The principle of comity may apply to findings of law and findings of fact. However, the application of the principle of comity is a flexible one, depending on the circumstances of the case.

86 Of course, quite apart from considerations of judicial comity, one judge may simply find the reasoning of another judge persuasive.[28]

87 Here, Robson J's observations as to the merits were very careful and detailed, running to some 14 pages. He considered both the relevant authorities and the very same evidence as is before me on this appeal. I find his reasoning very persuasive.

88 Like Robson J, I am not persuaded that Ms Narain has established an arguable defence to a claim based upon the first deed of settlement (rather than the loan agreement). Given that the appeal from the Robson orders and any appeal against my decision will be heard and determined by the same Court of Appeal, it seems undesirable that I add to the complexity of this case by delivering separate reasons as to the merits. Accordingly, I adopt as my own the reasons given by Robson J, in so far as they relate to the merits of Ms Narain's proposed defence.

89 It follows that the appeal against the Evans judgment must be dismissed.

(1) The second defendant have leave to appeal against the judgment of this court given on 12 May 2006 ("the judgment").

(2) The time for filing a notice of appeal against the judgment be extended until 15 May 2008.

(3) Special leave is granted to the second defendant to rely at the hearing of the appeal upon the affidavits of Edwina Kate Narain sworn on 12 March 2008 and 22 April 2008 and Michael Main sworn on 1 April 2008.

(4) Special leave is granted to the plaintiff to rely at the hearing of the appeal upon the affidavit of Angela Nunn sworn on 31 March 2008.

91 I will hear from the parties as to the precise form of orders and as to costs.

[1] The parties did not inform me of the outcome of the application to the Court of Appeal until late July 2008, at which time Ms Narain's counsel requested that I not deliver my reasons before September 2008.

[2] In the proposed amended defence, which is discussed later in these reasons, Ms Narain no longer seeks to rely upon the alleged payment by Citrofresh.

[3] Orders of Master Evans made 23 February 2006, Master Efthim made 27 February 2006 and Master Evans made 3 March 2006. The defendants did not appear on any of these occasions.

[4] See affidavits of Gwenneth Mary Learey sworn 11 May 2006 and Angela Nunn sworn 31 March 2008.

[6] Robson J relied upon a number of authorities, including the decision of the Full Court in Roberts v Gippsland Agricultural & Earth Moving Contracting Co Pty Ltd [1956] VicLawRp 86; [1956] VLR 555.

[7] Euroasia (Pacific) Pty Ltd v Michael [2008] VSC 153 ("Robson reasons") at [93] - [95].

[9] Although the notice of appeal dated 15 May 2008 does not seek leave, leave was sought orally.

[10] See Livingspring Pty Ltd v Kliger Partners (2008) 66 ACSR 455; [2008] VSCA 93 and the earlier decisions referred to therein.

[11] Based on the transcript of the hearing before the Court of Appeal on 18 June 2008.

[12] An appeal against an order made without notice must be brought on for hearing within five days of the judgment or order: r 77.05(3). If the application was made on notice, then the notice of appeal must be filed within five days of the judgment or order: r 77.05(4).

[13] I am not sure to what evidence the master was referring in this regard; I have seen no evidence as to Ms Narain's financial position.

[15] Affidavits of Angela Nunn sworn 9 February 2006; Gwenneth Learey sworn 9 February 2006 and 11 May 2006; Patrick Hsu sworn 2 February 2006 and 9 May 2006; and Johann Chong sworn 20 February 2006.

[18] Brownport Management Ltd v Aqua-Tech 21 Pty Ltd [2002] VSC 396 at [39] per Hansen J.

[19] Discussed in more detail at para [35] above.

[21] See the discussion in paras [76]-[78] below as to why it is not necessary for me to consider this issue.

[24] Unreported, Supreme Court of Victoria, 2 July 1997, BC9703266.

[25] Unreported, Supreme Court of Victoria, App Div, 24 February 1994, BC 9400980.

[28] Indeed, Ms Narain's counsel conceded I may find the Robson reasons persuasive.

Court (General Civil Procedure) Rules 2005

At a glance

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Judgment (131 paragraphs)

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