[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.]
[2]
Judgment
THE COURT: Before the Court is an application for an extension of time in which to file a Notice of Appeal in relation to two decisions of Slattery J (the primary judge) in the Equity Division of this Court.
The underlying proceedings concerned the ownership of a property in Terrigal (the Terrigal Property), which had been purchased in 2001 for $440,000. The Respondent in these proceedings (the Plaintiff below) had entered into an oral agreement concerning the purchase of the property with her brother, the Applicant (the Defendant below).
By 2015, the relationship between the siblings had broken down, and the Applicant disputed the Respondent's claim to an equitable interest in the Terrigal Property. In 2015, the Respondent commenced proceedings in this Court, in which she sought declarations that the Applicant held the Terrigal Property on constructive trust for her as to 50% or, in the alternative, as to 40%. She also claimed, in the alternative, that the Applicant held the Terrigal Property on resulting trust for her.
Following a hearing before the primary judge in June 2018, on 22 February 2019, his Honour made a declaration that the Applicant held the property on constructive trust for the Respondent as to 40% and ordered that the Applicant pay the Respondent's costs. The primary judge's orders were entered on this date: see Nguyen v Nguyen [2019] NSWSC 131 (the principal judgment).
A further decision was handed down on 27 August 2019, following a supplementary hearing which took place on 16 August 2019 for an accounting between the parties: see Nguyen v Nguyen (No. 2) [2019] NSWSC 1103. A final order reflecting the outcome of the accounting hearing was given on 11 November 2019.
On 1 February 2021, the Applicant filed a Summons in the Court of Appeal, seeking leave to appeal from the principal judgment, accompanied by a draft Notice of Appeal and a summary of argument which addressed grounds in the draft Notice of Appeal. The draft Notice of Appeal was in the following form:
"1 Ground 1: The Judge's approach was incomplete
2 Ground 2: The Judge misconstrued a material fact
3 Ground 3: There is no evidence to support a finding of 60:40
4 Ground 4: Court accepted Respondent/Plaintiff's creditability [sic] with lack of onus of proof secondary concealment and obstruction. Therefore, Court erred in finding out the actual common intention of parties
5 Ground 5: It is unconscionable for not recognise Appellant/defendant acted and conducts to help Respondent/Plaintiff as per real common intention but then replace this common intention with a fraud and flawed litigation of joint venture with 2003 agreement that lack of supportive evidence with obstruction and misleading Court, lack of consistency and lack of logic.
6 Ground 6: Appellant/Defendant was treated unreasonable with double standard during the trial and fundamental irregularities in Court that allows the private lawyers causing miscarriage of justice with their misconducts as well as allowing them to enjoying these misconducts causing further innocent victim suffering from these misconducts."
The procedure adopted by the Applicant in seeking leave to appeal was misconceived, as he did not need leave to appeal from the orders of the primary judge; rather, he needed an extension of time in which to bring his appeal.
A notice of appeal would have been required to be filed within 28 days of the material date, pursuant to r 51.16(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). Whether the "material date" was 22 February 2019, being the date of the declaration, or 11 November 2019, being the date of the final orders representing the accounting between the parties: see [5] above, no notice of appeal was filed by either of those dates. Alternatively, the Applicant would have been required to file and serve on the prospective respondent a notice of intention to appeal within 28 days of the material date, pursuant to UCPR r 51.8, which would have thereby allowed the Applicant to file a notice of appeal within 3 months of the material date, pursuant to UCPR r 51.9(1). This also did not occur.
On the most beneficial view for the Applicant, if the material date was 11 November 2019 and the Applicant had filed a notice of intention to appeal followed by a notice of appeal, a notice of appeal should have been filed by 11 February 2020. The misconceived Summons seeking leave to appeal was filed just under one year later, on 1 February 2021.
On 8 March 2021, the Registrar of the Court of Appeal ordered that the Summons seeking leave to appeal be treated as an application for an extension of time in which to file a Notice of Appeal, and that the Applicant file and serve an Affidavit as to delay by 29 March 2021.
Before turning to a consideration of the Applicant's arguments as to why an extension of time should be granted, it is necessary to set out the relevant principles relating to the grant of an extension of time.
[3]
Legal principles
In Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2020] NSWCA 114 at [18] (Gilmore Finance), Meagher JA (with whom Macfarlan and White JJA agreed) outlined that the discretion to extend time is given for the purpose of enabling the Court to do justice between the parties, thereby ensuring that the time limitation does not become an instrument of injustice. His Honour made reference to the judgment of McHugh J in Gallow v The Honourable Justice Dawson (1990) 64 ALJR 458 at 459; [1990] HCA 30.
In Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [54]-[56], Basten JA (with whom Hodgson and Ipp JJA agreed) stated with reference to the former Pt 51 r 56(1) of the Supreme Court Rules 1970 (NSW):
"54 …This Court is entitled to extend time under subr (1) 'at any time'. That is in contrast to the power of the Court below to extend time only on application made within 28 days of its own decision. Accordingly, this Court has the power to make the order sought.
55 The approach to such an application requires acknowledgment of the proposition that 'the respondent to the application has a vested right to retain the judgment' which is proposed to be the subject of appeal: see Jackamarra v Krakouer (1998) 195 CLR 516 at 519 [4] (Brennan CJ and McHugh J). In such cases, consideration must be given to four factors of general relevance, namely:
[4]
(1) the length of the delay;
(2) the reason for the delay;
(3) whether the applicant has a fairly arguable case, and
(4) the extent of any prejudice suffered by the respondent to the application:
see Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 at 946; [1985] 2 All ER 517 at 520, referred to with approval, in such a context, in Jackamarra (at 520 [6]-[7]).
56 Speaking more generally, Kirby J noted that there might be other factors relevant to the grant of an extension of time in particular cases. As his Honour stated, after reference to the factors identified in Palata Investments (at 543 [66] (7)):
'…But they are by no means exhaustive. Several others have from time to time been thought relevant. These include whether the delay was intentional or contumelious; or merely the result of a bona fide mistake or blunder; and whether the delay is that of the litigant or of its lawyers, with which the litigant should not be saddled. It may also be relevant, where the default is that of a party's legal representatives, to take into account any considerations personal to the party which might have affected its ability to safeguard its own interests, for example, by applying pressure to its lawyers. Similarly, the extent to which any such prejudice may be remedied by an appropriate costs order is another consideration that has sometimes been treated as relevant'."
Later in his judgment, at [80], Basten JA said:
"In these proceedings, Mr Palasty seeks an indulgence by way of an extension of time. It is not in dispute, nor could it be, that he bears a burden of persuading the Court that there are proper grounds to grant his request: see Jackamarra (at 540 (Kirby J)). He does so in circumstances where an extension of time will 'put at risk a vested right of' Mr Tomko. It is sufficient for present purposes to conclude, therefore, that he has failed to provide any satisfactory explanation for the delay in seeking to proceed with an appeal or a cross-appeal. There are a number of adverse inferences which might be drawn, short of a deliberate manipulation of the system. One might be genuine vacillation on Mr Palasty's part, possibly caused in part by ill-health and partly by a reluctance to commit further funds to the litigation. Another explanation might in part be the failure of his legal advisors to appreciate the importance of adhering to timetables in relation to litigation. There may be other competing inferences. In the absence of any need to choose a preferable explanation, there is no need to make such a finding."
See also Gilmore Finance at [19] and Dyason v Butterworth [2015] NSWCA 52 at [65].
In Renshaw v New South Wales Lotteries Corporation Pty Ltd [2021] NSWCA 41 at [23], Brereton JA noted the relevant considerations on an application for an extension of time, as follows:
"Conventionally, the relevant considerations on an application for an extension of time include the conduct of the parties, the nature of the litigation, and the consequences for the respective parties of granting or refusing an extension. Thus it is relevant to consider the extent of the delay, and the reasons for it; the prejudice to the applicant if leave be refused; the prejudice to the respondent if leave be granted; and the prospects of success of the proposed appeal… after the time for appeal has expired, the party that succeeded at trial is entitled to expect that the litigation is over, and that legitimate expectation ought not be disturbed by an extension of time except for good reason. A short extension may require very little more, unless the proposed appeal is manifestly without merit or the delay has not caused prejudice to the respondent. It may be a sufficient explanation that the delay was attributable to a mistake or inadvertent omission. However, one consequence of being out of time to appeal and requiring an extension is that, in distinction from an appeal brought in time as of right, an application for an extension of time invites a preliminary review of the merits. This will, at least ordinarily, not involve a detailed evaluation of the prospects of success of the proposed appeal, and it will generally suffice for the applicant to demonstrate a fairly arguable case, at least if there is a reasonable explanation for delay and no significant prejudice to the opponent; but if either of those conditions is not satisfied, the applicant may be required to show that the proposed appeal has more than merely arguable prospects of success. If it appears that the appeal is a highly meritorious one, that will weigh heavily in favour of an extension of time, although it is not decisive; but if it appears that the appeal cannot succeed, an extension of time to bring a hopeless appeal should not be granted". (footnotes omitted).
As Gleeson JA noted in O'Hare v Bradfield Bentley Pty Ltd (in liq) [2019] NSWCA 122 at [34], it is also necessary to bear in mind the overriding purpose to ensure that litigation is resolved in a timely fashion. His Honour there noted that:
"Applications to extend time should be considered in the framework constituted by ss 56-60 of the Civil Procedure Act 2005 (NSW), and against the background of a modern approach to despatch of litigation and the need for reasonable expedition: Richards v Cornford (No 3) [2010] NSWCA 134 at [98], [110] (Allsop P, McColl JA agreeing). Thus it is necessary to take into account the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction: Civil Procedure Act, s 58(2)(b)(vi)."
[5]
Submissions for the grant of an extension of time
The Applicant filed and served his Affidavit with respect to an extension of time on 29 March 2021. However, the Affidavit largely repeats verbatim the summary of argument that had been filed in support of the misconceived application for leave to appeal.
The Affidavit does, however, contain a short section entitled "The reason for the case filed to Court of Appeal now". The section begins with three paragraphs which contain bald assertions of fraud attributed to the Respondent, her husband and her legal advisers, and then notes that the primary judge took 8 months to reach his decision, this last point apparently being made not so much by way of complaint but rather as an indication of the complexity of the case.
The Applicant then draws a contrast, stating "On another [sic: the other] hand the Appellant is just a medical officer who is busy with his family/medical professional commitment especially extra impact with pandemic". The Applicant then continues:
"Appellant is set up with a fraud, and been bullied from time to time by lawyers without legal support rather than betrayed by his lawyers who get bribe from other side and now have to work out the fraud and misconducts as well as pointing out the fundamental irregularities/double standard and point out the irrational/unfair/irrelevant precedents for court and misconducts [sic] by private lawyers … This case is not a simple equity case but a case of legal practitioners' misconduct and arrangement and intentionally caused miscarriage of justice for their financial interest only. Therefore, it is taking time to work out because even professional investigators could take years to work it out."
The serious allegations of fraud, bribery and deliberate professional misconduct were nothing more than assertion, and do not assist the Applicant's case. His explanation, when stripped of these wholly unspecific and unsubstantiated allegations, comes down to nothing more than that the Applicant is "just a medical officer who is busy with his family/medical professional commitment especially extra impact with pandemic", and that the case was complex and made more so by what the Applicant claimed was the fraud and misconduct of the Respondent and her legal advisers.
On 21 April 2021, the Registrar of the Court of Appeal ordered, inter alia, that the Applicant's submissions on evidence and an extension of time were to be filed and served by 12 May 2021.
On 13 May 2021, the Applicant filed and served submissions dated 12 May 2021, which largely repeated the allegations of fraud on the part of the legal practitioners involved. The reasons expressed to justify the delay in the filing of the appeal were the same as those raised by the Applicant in his Affidavit dated 29 March 2021. The matter was not taken further in terms of a satisfactory answer for the lengthy delay in the filing of proceedings in the Applicant's submissions in reply filed on 21 July 2021, or in the Applicant's oral submissions where he was asked directly what his explanation was for the lengthy delay in the commencement of appeal proceedings.
The Applicant endeavoured to suggest that certain documents supplied by the Respondent in relation to the taxation of costs in late 2020 disclosed the fraudulent conduct of which the Applicant complained but, when taken to the documents in question, the Applicant was unable to articulate in any coherent way how it was that these documents supported any allegation of fraud. That is, of course, a most serious charge to make and the gravity of such allegations is to be contrasted with the looseness with which the Applicant made them. It suffices to say that, in the Court's view, so far as the allegations were comprehensible, they were baseless.
The Respondent submitted that the application to extend time should be refused by reason of the sheer length of the delay; that the Applicant had failed to provide any adequate explanation for the delay, and that his being "busy" was not a satisfactory explanation; that the Applicant did not have a fairly arguable case; and that the Respondent would suffer prejudice if the application were granted.
The Respondent further submitted that in the present case, the Court should find that the Applicant's delay was "intentional", as he did not provide any evidence that he was unaware of the relevant time limit, in circumstances where he did have legal representation at the time of the principal judgment.
[6]
Consideration
In our view, the notional application for an extension of time within which to file a Notice of Appeal should be refused with costs.
As we have explained, the delay involved was very lengthy. On the most charitable approach to the Applicant, the delay was just under a year had the Applicant taken the opportunity to file a notice of intention to appeal by the required date in February 2020 after the primary judge's second decision which, of course, he did not do.
It should be noted in that context that the procedural mechanism of a notice of intention to appeal, as provided for in the UCPR, is designed to give disappointed litigants an extended period of time (up to three months) in which to consider whether or not to appeal. That is expressly designed for complex cases of the kind which the Applicant asserted the present case was an example. The extended period allows for advice to be taken as to appeal prospects. The notice of intention to appeal procedure also operates to put a potential respondent to an appeal on notice of the possibility that the judgment in which he, she or it has had success may yet be the subject of an appeal.
It is relevant to note that the solicitor for the Applicant in the proceedings before the primary judge did not cease to act for him until 1 April 2019, some 5 weeks after delivery of the principal judgment, and that Mr Shaw of counsel who had appeared for the Applicant in the principal proceedings, held himself out as appearing for and assisting the Applicant on a direct access basis between at least March and July 2019. Mr Shaw is an extremely experienced barrister, having been admitted for over 50 years. It may be readily inferred that the Applicant could have taken advice from Mr Shaw as to his appeal rights and the prospects of an appeal from the principal judgment. It is also likely that the Applicant was informed of the timeframes for lodgement of any appeal.
The fact that the Applicant was represented at trial and continued to be represented for a number of months following delivery of the principal judgment answers in part the Applicant's claim to have been "busy" and "just a medical officer", with the implication that he did not have the ability to ascertain or assess his rights to or prospects on appeal. It should also be noted that the evidence is silent as to at what point, if any, Mr Shaw stopped acting for the Applicant or as to whether or not the Applicant has had access to any other legal advice since that time.
In any event, the fact that a person may be acting for themselves does not mean that they are immune from the rules or is to be treated differently to any other litigant in relation to appeals. This is in part because the party against whom an appeal may be brought has a wholly legitimate interest in the finality of the dispute. That is the very reason why time limits are imposed upon a party's right to appeal. As Bell P observed in Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 at [39]-[41]:
39 Whilst it may be accepted that some latitude may, in an appropriate case, be afforded to a litigant in person, and that the Court is empowered to waive any requirements of the UCPR in an appropriate case, it is important to keep in mind the remarks of Lord Sumption (with whom Lord Wilson and Lord Carnwath agreed) in Barton v Wright Hassall LLP [2018] 1 WLR 1119; [2018] UKSC 12 at [18]:
'In current circumstances, any court will appreciate that litigating in person is not always a matter of choice. ... Some litigants may have little option but to represent themselves. Their lack of representation will often justify making allowances in making case management decisions and in conducting hearings. But it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of court. ... The rules provide a framework within which to balance the interest of both sides. That balance is inevitably disturbed if an unrepresented litigant is entitled to greater indulgence in complying with them than his represented opponent. Any advantage enjoyed by a litigant in person imposes a corresponding disadvantage on the other side, which may be significant if it affects the latter's legal rights ... Unless the rules and practice directions are particularly inaccessible or obscure, it is reasonable to expect a litigant in person to familiarise himself with the rules which may apply to any step which he is about to take."
40 The above passage was cited with approval by Garling J in Ryan v The Council of the City of Sydney [2018] NSWSC 265. At [45], his Honour noted that:
'...while the Court has a duty to treat litigants in person fairly and to hear their arguments fully, the Court may not indulge the litigant with special treatment in a way that disfavours their opponent.
41 Similarly, in Malouf v Malouf (2006) 65 NSWLR 449; [2006] NSWCA 83 at [183], Bryson JA remarked that:
'Courts should not go so far in accommodating the positions of unrepresented litigants as to make it an advantageous procedural step to dismiss one's lawyers, or to retain none. ... Without procedure, procedural directions and compliance, justice will not be done at all. ...The compliant also have an entitlement to consideration, and their compliance should not be disregarded, or mocked, by treating their opponent's obligation to comply with the court's directions as less than important, or as superfluous.'"
As to the balance of the Applicant's explanation for delay, we have already explained that we consider that the allegations of fraud and misconduct by the Respondent, her husband and her lawyers lack any proper foundation, but they also fail to supply any reason for the extreme delay in seeking to lodge an appeal. As Basten JA said in Rizk v FA Constructions Australia Pty Ltd (No 2) [2016] NSWCA 203 at [6] (Rizk), "[s]ome delay may well be excusable in circumstances where a proper explanation has been given. In this case, the delay is excessive and no adequate explanation has been given as to precisely what steps were taken prior to the filing of the summons in January 2016." The delay in that case was approximately 16 months. In the present case, the delay was either 23 months or approximately 12 months. On either view, it was excessive and, like Rizk, has been unaccompanied by a satisfactory explanation.
In the present case, the Respondent points to prejudice in an unchallenged Affidavit from her solicitor, Mr Dang. The prejudice asserted relates principally to steps taken to recover costs from the Applicant in relation to the proceedings at first instance which have involved expense and which it is said would not have been incurred had the Applicant appealed in a timely manner. It is also put that attempts by the Respondent to recover rent in relation to the property and an intention to seek an order pursuant to s 66G of the Conveyancing Act 1919 (NSW) consequent upon the Applicant's failure to account will be frustrated if an extension of time is granted. To those instances of prejudice must be added the more general prejudice occasioned by the personal impact and pressures of litigation which the finality of proceedings is designed to put to an end.
As to the arguability of the Applicant's proposed appeal, the grounds set out in the draft Notice of Appeal (see [6] above) are not particularly illuminating. To the extent that the Applicant has expanded on these grounds in his written submissions, many of those submissions repeat unsubstantiated allegations of fraud against the Respondent, betray legal confusion or rely on material either not in evidence before the primary judge or which does not appear to have been drawn to the primary judge's attention. Nothing advanced in the written submissions suggests that an injustice will be generated for the Applicant if an extension of time is not granted.
For all of the above reasons, the notional application for an extension of time must be refused with costs, as must the Applicant's misconceived application for leave to appeal.
[7]
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Decision last updated: 03 August 2021