Dimitriou v Huybers

Court of Appeal (NSW)|2018-03-26|Before: Basten JA, Macfarlan JA, Leeming JA, Meagher JA, White J

Solicitors: Mr G Dimitriou for all applicants Kekatos Lawyers (Respondent) File Number(s): 2016/227999 Decision under review Court or tribunal: Court of appeal Citation: [2017] NSWCA 252 Date of Decision: 10 October 2017 Before: Meagher JA File Number(s): 2016/227999

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

JUDGMENT on review application

THE COURT: On 30 June 2016 White J, sitting in the Equity Division, gave judgment against the present applicants in favour of the first and second respondents, Susan Elizabeth Huybers and Pineview Property Holdings Pty Ltd. The applicants, George Dimitriou and two companies associated with him, gave notice of intention to appeal within time but failed to lodge a timely notice of appeal. White J also declined to make certain costs orders against the third respondent, Salvatore Russo, with respect to costs incurred in the trial. The appeal purported to challenge that decision, but no application was initially made for leave to appeal against that order. An application for leave has been included (irregularly) in the notice of motion before this Court.
On 31 October 2016, one month out of time, a notice of appeal was filed, although Mr Dimitriou claims it was an error in the registry which caused it to be noted as filed out of time. However, it was listed for directions on 8 February 2017. There followed a series of defaults by the applicants in relation to directions which resulted, on 5 June 2017, in the President making orders, including a guillotine order dismissing the proceedings if a further timetable were not complied with. The timetable was not complied with.
The relevant date for compliance was 3 July 2017. On 6 July the Registrar advised the applicants that the proceedings had been dismissed and a proposed directions hearing listed for 10 July 2017 had been vacated. On 11 August 2017 the applicants filed a notice of motion which, curiously, did not include an application for an order setting aside the judgment. Nevertheless, that was undoubtedly the intended effect of the orders sought, which included an order revoking the order made on 5 June 2017, and an order extending time for compliance with that order if it were not revoked.
That motion came before Meagher JA on 25 September 2017, at which time the applicants filed in court an amended notice of motion. On 10 October 2017 Meagher JA made orders dismissing the applications in "the amended notice of motion filed on 25 September 2017." The matter now before the Court is an application to review that decision, made pursuant to an amended notice of motion filed on 24 November 2017.

Judgment of single judge

Meagher JA provided comprehensive reasoning for his refusal of the relief sought by the applicants. He concluded that, although the applicants sought to place responsibility for failure to comply with the relevant orders on the default of their lawyers, the material before the Court did not enable him to determine to what extent the lawyers were responsible for the default and to what extent it was the responsibility of the applicants. It was a matter for the applicants to persuade the judge that the failure to comply with the directions of the Court should be excused. That task was not made easier by the scale of the failures, extending to numerous directions over a period of some months. Following a careful consideration of the relevant material and the history of the matter, Meagher JA said that he could not "determine the extent to which that non-compliance was due to omissions of the lawyers that should not be attributed to the applicants." [1] The effect of that conclusion was that there was no sufficient explanation of the failure to comply.
The judge moved on to consider the prospects of success of the proposed appeal. That exercise, too, was attended by some difficulty, given the inadequacies of the grounds of appeal and the failure of the written submissions to address many of the grounds in an effective manner. Nevertheless, in what may be seen in such proceedings as an exhaustive attempt to ensure that there was no identifiable injustice in refusing the relief sought, the judge examined each of the broad issues sought to be raised but concluded with respect to each that there was no merit in the proposed appeal. His conclusion was an affirmative satisfaction that the appeal had "no realistic prospects of success." [2]

Application for review

The application for review stated that "[t]he principles that govern review proceedings are not dissimilar to those that [govern] the grant of leave to appeal." That proposition should not be accepted. At the very least, a party which has been in default of procedural requirements and directions with respect to the conduct of an appeal, resulting in the appeal being dismissed, has a heavy burden to establish error in the order dismissing the appeal. Furthermore, where a judge has reviewed that order and found that there has been no adequate explanation of the relevant failures and that the appeal has no real prospects of success, the applicants' burden on a review application is significantly heavier.

(a) no failure to comply with 5 June order

The first basis on which review was sought was that there had in fact been no failure to comply with the order made by the President on 5 June 2017, a submission said not to have been addressed by Meagher JA.
Order 1 made on 5 June was in the following terms: 1. Vary orders 2 and 3 made on 10 May 2017 and direct that the appellants file and serve: (a) any further amended notice of appeal; and/or (b) written submissions in support of their appeal on or before 5.00pm on 3 July 2017.
The applicants submitted that, because an amended notice of appeal had been filed before the order was made, the order should not have been made. It was further submitted that, having filed an amended notice of appeal, the applicants had in fact already complied with the order.
It is true that Meagher JA did not deal with this submission, which may have been because it was not expressly raised in the amended notice of motion of 25 September 2017. Nor was it expressly raised in the amended notice of motion for review of 24 November 2017. However, if it is to be addressed, it must be rejected. The order accepted that an amended notice of appeal had been filed but referred to the possibility that a "further amended notice of appeal", which had then been proposed by the applicants, was to be filed. If such a document were filed, then both it and the written submissions in support were required to be filed by 3 July 2017; if no further amended notice of appeal were filed, the order nevertheless required that the written submissions be filed by 3 July 2017.
The lack of substance in this ground is demonstrated by the fact that the applicants did file a further amended notice of appeal and written submissions in support, but not until 21 or 22 September 2017. Although drafts of a form of a notice of appeal were attached to affidavits filed in August that was, nevertheless, well after 3 July 2017. An extension of time within which to do so was not sought, despite the terms of order 6 made by the President which permitted such an application to be made.
While the use of the words "and/or" in order 1 might in some circumstances be ambiguous, they were not in the present case. They allowed for the possibility that only written submissions would be filed, and allowed that that would be a sufficient compliance with the order. There is no substance in the suggestion that an "amended notice of appeal" having already been filed, the order was therefore complied with before it was made. The order expressly envisaged the possible filing of a "further amended notice of appeal". Clearly, reading the order in its context, the existing document did not constitute compliance.

(b) no inadequacy of explanation

The second matter raised in the applicants' submissions was that the judge did not dismiss the matter on the basis of an inadequate explanation for non-compliance, because he was unable to resolve the extent to which that had been the responsibility of the applicants' lawyers. He, therefore, dealt with the matter solely on the basis of the prospects of the proposed appeal.
If that were intended as a second error on the part of the judge, it was without substance. It was for the applicants to demonstrate an adequate and sufficient explanation for their noncompliance with directions. Meagher JA clearly accepted that they had failed to do that. That was an essential element in reasoning to the dismissal of the application before him. There was no error in adopting that approach.

The third basis of challenge appears to have been that Meagher JA addressed the grounds in the further amended notice of appeal without regard to "fresh evidence" which might be led on the appeal.
There was no application before Meagher JA for leave to call further evidence on the appeal. An application which has been made in this Court has been rejected for reasons which were given at the outset of the hearing. Even if there had been an application before Meagher JA, it could not affect the present application or, indeed, the application before Meagher JA himself, absent some indication of the content of the "fresh evidence". Evidence was belatedly sought to be tendered in this Court, but was not accepted for reasons already noted.

(d) other finding that appeal not unarguable

Finally, the written submissions prepared by the applicants complained that Meagher JA failed to deal with an observation made by Brereton J (on an earlier application for a stay with respect to orders of the trial judge) that "it was not unarguable that the authority of the Rubinos' [sic], through their Agent (Son), was sufficient to authorise the payment away of funds by Pineview as trustee". [3]
How Mr Frank Rubino, the son of the plaintiffs in the proceedings, could have had authority on behalf of Ms Huybers to direct payment of moneys held by the applicants was not explained. Nor does that proposition address the finding of the trial judge that Mr Frank Rubino was not a person upon whose evidence any reliance could be placed "unless it contained admissions or was consistent with facts otherwise objectively established", a finding expressly referred to by Meagher JA. [4] Meagher JA dealt comprehensively with the arguability of the proposed appeal.

(e) costs order refused at trial

In addition to the challenges to the dismissal of the application with respect to Ms Huybers and Pineview, the applicant also sought to appeal from the refusal to make a costs order against Mr Russo. No submissions were addressed to this element of the appeal, for which leave would have been required in any event, and, thus, no error has been shown in the failure of Meagher JA to set aside the dismissal of the appeal in this respect.

Conclusion

There is no basis to set aside the judgment under review. The notice of motion should be dismissed.

Costs of present application

There is an application by counsel for the respondents for an order for costs to be assessed on the indemnity basis. The usual principles applicable to indemnity costs have not been made out.
The order will be that the applicants pay the costs of the respondents to be assessed on the ordinary basis.

Endnotes

Dimitriou v Huybers [2017] NSWCA 252 at [22].
Huybers at [56].
Applicants' written submissions, filed 24/10/2017, p 5.
Huybers at [33]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 March 2018

At a glance

Court

Decision date

Before

Source

Judgment (14 paragraphs)

Parties

Cases Cited (1)

Cited By (1)