Pamamull v Albrizzi

Court of Appeal (Vic)|2010-07-16|Before: WEINBERG and HANSEN JJA

Albrizzi (Sales) Pty Ltd v Pamamull (Unreported, Supreme Court, 22 March 2010, Pagone J)

PRACTICE AND PROCEDURE - Application for extension of time within which to file and serve Notice of Appeal - Delay both short and relatively inconsequential, with no prejudice to respondent - Proposed grounds tenable - Application for extension of time granted - Application for stay of execution, or of proceedings and/or orders made below - Stay refused.

1 By Summons filed on 7 May 2010, the applicant seeks an extension of time within which to file and serve a Notice of Appeal against a decision of a judge of the Trial Division made on 22 March 2010. He requires an extension of time because his Notice of Appeal was not served within 14 days after the day the decision of the court of first instance was given, as required by r 64.03 of the Supreme Court (General Civil Procedure) Rules 2005 ('the Rules'). The Notice of Appeal ought to have been served no later than 5 April 2010, but was not served until three days later, on 8 April 2010. A copy of the Notice of Appeal was not filed in this Court until 15 April 2010.

2 In addition, the applicant seeks an order that leave be granted to amend the Notice of Appeal.

3 The applicant also seeks an extension of time within which to deliver to the Registrar, and serve upon the respondent, a note of proposed contents of the appeal book. The prescribed note was not delivered and served until 22 April 2010. Pursuant to r 64.08 of the Rules, that note was required to be delivered and served no later than seven days after the expiration of the time fixed by r 64.03 for the service or filing of a Notice of Appeal. Arguably, therefore, the note ought to have been delivered and served no later than 12 April 2010.

4 The applicant's failure to comply with r 64.08 meant, in accordance with r 64.16, that his appeal was taken to be abandoned. He therefore seeks an order pursuant to r 64.16(2) that the appeal not be taken to be abandoned.

5 Finally, the applicant seeks an order for a stay of execution, or of proceedings under the judgment, and/or orders made by the trial judge, on 22 March 2010.

6 The circumstances giving rise to these various applications on behalf of the applicant are somewhat unusual. On 22 May 2008, he entered into a contract with Albrizzi (Sales) Pty Ltd, the respondent to this application, for the purchase of a property situated at 272 Toorak Road, South Yarra (Certificate of Title Volume 9491 Folio 181). The terms of the contract provided that the applicant would pay a purchase price of $2,750,000 plus GST. A deposit of $200,000 was required on execution of the contract, with the balance to be paid on or before 22 March 2009.

7 When the balance of the purchase price was not paid, the respondent served a rescission notice with effect from 14 April 2009. Following a marketing campaign undertaken by the real estate agent acting for the respondent, the property was sold for a second time on 15 July 2009 for the sum of $1,925,000.

8 Shortly thereafter, the respondent commenced proceedings against the applicant seeking damages arising from his failure to complete the contract.

9 Eventually, the proceeding was heard and determined on 22 March 2010. The actual trial took less than half a day, from the time of its commencement, until judgment was given. The trial judge found in favour of the respondent, and, on the same day, ordered the applicant to pay damages in an amount of just under $800,000, and dismissed the applicant's counterclaim. However, his Honour adopted what seems to have been an unusual course. He directed that the effect of those orders was to be deferred until 2.30 pm on 24 March 2010 when, he indicated, he would entertain any application by the applicant to vacate them.

10 The reason why his Honour adopted that course stemmed from the fact that the applicant had been unrepresented during the course of the trial. In fact, the applicant had, on a number of occasions on both the morning and afternoon of 22 March 2010, sought unsuccessfully to have the trial adjourned. By expressing his orders in the way that he did, his Honour effectively gave the applicant two days grace within which to obtain legal representation, so as to seek to dissuade him from entering final judgment in favour of the respondent.

11 For reasons that are not presently relevant, the application to vacate his Honour's orders was not able to be heard until the morning of 25 March 2010. The applicant was, on that day, represented by senior counsel. It was submitted on the applicant's behalf that he had in fact had available to him a good defence to the respondent's claim, but one that, regrettably, had not previously been advanced. The blame for that was laid squarely at the feet of the applicant's former legal representatives.

12 The trial judge was not persuaded that he should vacate the orders made three days earlier. In arriving at that decision, his Honour said that he was influenced, in particular, by the fact that no evidence had been led at trial of the existence of at least one critical fact so far as the applicant's defence was concerned.

13 That critical fact related to the applicant's contention that the property he had purchased from the respondent encroached onto neighbouring land. According to the applicant, that meant that no permit allowing for the development of the site could be granted.

14 The applicant's pleading had characterised the asserted encroachment as an 'easement' which, according to his defence, ought to have been disclosed by the vendor in the s 32 Statement. According to the pleading, that non-disclosure meant that the applicant was entitled to rescind the contract.

15 However, his Honour noted, in response to senior counsel's submission, just as he had when he pronounced orders in favour of the respondent on 22 March 2010, that the applicant had failed, during the course of the trial, to establish the existence of the encroachment, there having been no evidence led, in admissible form, that there ever had been any such encroachment.

16 Plainly, as his Honour noted, any encroachment could not, in any relevant sense, have constituted an easement, still less one of a kind that would have to be disclosed in a s 32 Statement.

17 Senior counsel acknowledged that the applicant's defence to the case brought against him had been pleaded in a hopeless manner, and presented at trial without a proper evidentiary foundation.

18 However, senior counsel submitted that, despite the deficiencies in the way in which the applicant's case had, to that point, been presented, the applicant was entitled to rely upon the encroachment, once proved, to justify his having refused to complete the contract. It was submitted that, as a result of the encroachment, the applicant could not obtain a permit to enable the property to be developed. Yet he had purchased the property at a premium in order to develop it. His inability to obtain a permit meant that he would be denied funding for the purchase.

19 Before this Court, senior counsel submitted that, because of the encroachment and the consequential inability to obtain a permit, the vendor's title had been defective and the applicant had been entitled to rescind the contract. He cited authority for that proposition. Alternatively, he pointed towards some form of restitutionary relief that might be available to the applicant in these somewhat unusual circumstances. He noted that the respondent, through its agent, had always been aware that the applicant proposed to develop the land, and that he had purchased it with that object in mind. He also noted that the respondent had been made aware of the encroachment well before it sought to rescind for non-completion. He submitted that, in these circumstances, it was unjust for the respondent to have recovered damages.

20 Senior counsel also submitted that the applicant had been disadvantaged by the fact that he had failed to respond to a Notice to Admit, upon which the respondent relied to prove a number of essential facts.[1] The applicant claimed, during the proceeding on 22 March 2010, that he had been unaware of the existence of that Notice to Admit, or of the consequences of failing to respond to it. That claim was supported by an affidavit sworn by the applicant. There is no reason to doubt the truth of the applicant's assertion to that effect.

21 Perhaps more pertinently for present purposes, senior counsel for the applicant contended that his client had never been made aware, by the trial judge, of his right to seek to be relieved from the consequences of not having disputed the facts alleged in the Notice to Admit.

22 In considering the possible merits of the proposed Notice of Appeal, the history of the matter is of some importance. It seems that the applicant had been legally represented throughout, right up until the morning of the trial. However, it appears that he was in dispute with his legal advisers as to how, if at all, to meet the claim made against him. According to the applicant, his lawyers told him that he had an arguable defence, but advised him to consent to judgment because he lacked the funds to contest the case. Those lawyers sought, and were granted leave, to withdraw from the case by the trial judge on the very morning of the trial.

23 The applicant now wishes to appeal against his Honour's judgment on a number of grounds, but which can be reduced to two separate bases. He contends that the orders made against him ought to be set aside because the trial judge erred in failing to grant him an adjournment once it became apparent that he would be unrepresented at the trial. Of course a ground of that nature will always face considerable difficulty.

24 Perhaps more tellingly, the applicant argues that the trial judge failed, in various ways, to provide him with the assistance to which he, as a self-represented litigant, was entitled. In that regard, we were told from the Bar table that the applicant has limited command of English. It was further submitted, as it had been below, that the applicant had had available to him, at all times, an arguable defence to the claim brought against him. However, that defence had neither been pleaded, nor properly presented at trial.

25 I have read the transcript of the proceedings on both the day of the trial, and the day on which senior counsel appeared on the applicant's behalf seeking to have his Honour's orders vacated. It seems clear to me, from the first of those transcripts, that the applicant had little real appreciation of what was happening on the

22 March 2010, and said so repeatedly. Manifestly, he was in no position adequately to defend the claim brought against him.

26 Of course, the applicant did not, at any stage while unrepresented, seek to amend his defence. Nor, however, it must be said, did the trial judge inform him that he could seek leave to do so.

27 In addition, the applicant did not invite the trial judge to act upon the contents of a surveyor's report, which had been obtained at his Honour's own instigation in December 2009. That report, if properly proved, would have demonstrated the existence of the alleged encroachment, and cured the defect to which his Honour referred in his short reasons for judgment. When his Honour said that there was no evidence of any such encroachment, the likelihood is that the applicant would have had no understanding of what his Honour meant. He was not advised of the need to call the surveyor, or to annex the report to an affidavit in order to render its contents admissible. Had he been so advised, he might have been able to establish the existence of the encroachment.

28 Not surprisingly, all that the applicant appears to have done during the course of the trial was to ask repeatedly for the matter to be adjourned. His Honour took the view that, the case having been listed for trial for many months, an adjournment was not warranted. He noted, in the course of refusing the adjournment, that the respondent's case was a strong one. On the pleadings as they stood, that conclusion was undoubtedly warranted.

29 Senior counsel for the applicant submitted before this Court that the apparent strength of the respondent's case was, by no means, the end of the matter. He submitted that, as a self-represented litigant, the applicant was entitled to an appropriate degree of assistance, and advice, from the trial judge.[2] He submitted that the grounds of appeal upon which the applicant proposed to rely would contend that he did not receive that appropriate degree of assistance and advice.

30 In considering this matter, it should perhaps be noted that, at one stage during the hearing on 22 March 2010, his Honour appeared to be receptive to the application for an adjournment. Indeed, he told the applicant that, if he were to grant an adjournment, the applicant would have to pay the costs thrown away. His Honour asked counsel for the respondent to estimate those costs. He was told that they would be in the order of $8,000. The transcript shows that the applicant immediately offered to pay that amount.

31 However, his Honour clearly doubted the applicant's bona fides in that regard, possibly having been influenced by an assertion in an affidavit filed on behalf of the respondent that a bankruptcy notice, arising out of an unrelated matter, had already issued against the applicant. He indicated that he would require the applicant to provide that sum almost immediately. When the applicant replied that he could not do so, but offered instead to procure the money by 5pm that day, his Honour rejected that suggestion, and refused the adjournment. The trial then continued.

32 In an application for an extension of time within which to file a Notice of Appeal, this Court does not delve too deeply into the merits of the proposed appeal. It is concerned, rather, with the extent of any delay, the reasons for that delay, and any prejudice that might be occasioned to the party that was successful below. The merits of the appeal are taken into account only to the extent that the Court will not extend time where it would be futile to do so. Obviously, it would be futile to extend time if the proposed grounds of appeal were hopeless, or so weak as to render it highly unlikely that the appeal could succeed.

33 The explanation provided for the applicant's failure to file his Notice of Appeal within 14 days, as required by the Rules, is in my view, satisfactory. It is understandable, having regard to the form of the orders made by the trial judge, that the applicant and his most recent legal advisers would have believed, mistakenly, that time ran from the 25 March 2010, rather than from the 22 March 2010. His Honour's course of deferring the effect of those orders for several days was somewhat unusual, and could well have led to uncertainty.

34 The extension of time required is modest. The delay of three days in serving the Notice of Appeal was short and, in my view, inconsequential. The respondent was in no way prejudiced by that delay.

35 The separate and distinct failure of the applicant to deliver and serve the note was the result of a genuine error on the part of his junior counsel. An affidavit to that effect sworn by junior counsel was filed with this Court. In my view, that failure should be excused.

36 The grounds of appeal set out in the proposed Notice of Appeal will, no doubt, be strongly opposed, and some at least are, as I have indicated, fraught with difficulty. Nonetheless, it cannot be said, in my opinion, that none of these grounds are tenable. Nor can it be said that they are all so obviously devoid of merit as to justify this Court in refusing the very modest extension of time required.

37 Therefore, I would grant both the extension of time within which to serve and file the Notice of Appeal, and the extension of time within which to deliver and serve the note of proposed contents. It follows that the applicant's appeal should be deemed not to have been abandoned. I would also grant leave to amend the Notice of Appeal in the terms foreshadowed during the course of this application.

38 The application for a stay presents greater difficulty. The principles under which a stay will be granted by this Court, pursuant to r 66.16 of Rules, are helpfully set out in 1-5 Grantham Street Pty Ltd v Glenrich Builders Pty Ltd.[3] A stay will only be granted in special or exceptional circumstances. Among the relevant considerations are the prospects of success on appeal (which are to be assessed in a 'fairly rough

and ready way') and the risk that, in the absence of a stay, the appeal will be rendered nugatory if it succeeds.

39 The prospect that an appeal may be rendered nugatory must be balanced against the principle that the successful party is entitled to the fruits of the judgment. A stay should not be granted unless there is an arguable ground of appeal. However, consideration of the prospects of success should not constitute a full rehearsal of the arguments to be advanced on appeal.

40 The applicant argues, in support of the stay, that the appeal in this case will be rendered nugatory if the respondent enforces the judgment for nearly $800,000 before the appeal can be determined. In that event, he claims, he may well be bankrupted. He submits that it would be unlikely, in those circumstances, that his trustee in bankruptcy would permit this proceeding to continue, or that he would be in a position to fund the appeal.

41 In addition, the evidence indicates that there is already in existence at least one bankruptcy notice against the applicant. That bankruptcy notice arises out of a wholly unrelated debt. We were told from the Bar table that there are negotiations in train in relation to that matter.

42 The applicant argues that the prospect that he will be bankrupted by the respondent if the judgment against him is not stayed, constitutes a special circumstance which justifies such a stay.

43 There are cases where considerations such as these have been held to be relevant, and to amount to 'special circumstances'. However, the weight to be accorded to prospective bankruptcy is a matter which will vary from case to case. Of course, no one is in a position to say definitively what other sources of finance might be available to the applicant were he to be bankrupted.

44 In my opinion, the affidavit material put forward on behalf of the applicant in support of his application for a stay is seriously deficient, and falls well short of

establishing the basis for the grant of such a stay. The applicant's current financial position is outlined in only the most sketchy detail. I would therefore refuse the stay that is sought.

45 There are several other matters that need to be addressed. The respondent seeks security for costs in the event that time is extended. That application is not opposed. The amount in question is said to be of the order of $17,000. In my opinion, security for costs in that amount should be ordered.

46 In addition, the respondent argues that the applicant should be required to pay into Court an amount to cover the costs of the adjournment which the applicant sought, and which he now claims to have been improperly denied by the trial judge. Had the adjournment been granted, the applicant would have been required to pay those costs. There is much to be said for the respondent's position in that regard.

47 It will be recalled that the amount estimated to have been thrown away, in the event that the trial was adjourned, was $8,000. However, counsel who provided that estimate, and who also appeared before this Court, frankly acknowledged that this sum had been calculated on a solicitor/client basis. He accepted that a more realistic figure, in terms of costs thrown away on a party/party basis would be in the order of $5,000.

48 The application to have that sum paid into Court is, in effect, a form of security, intended to protect the respondent in the event that this appeal proceeds and ultimately fails. In my view, the applicant should pay that sum into Court.

49 In my view, this case warrants an expedited hearing. I would propose that the President be approached and asked to arrange for such a hearing at the earliest practicable opportunity.

1. On the Summons filed on 7 May 2010, the time within which to serve a Notice of Appeal against the trial judge's decision made on 22 March 2010 be extended to 8 April 2010.

2. On the same Summons, the time within which to file a Notice of Appeal be extended to 15 April 2010.

3. On the same Summons, the time within which to deliver to the Registrar, and serve upon the respondent, a note of the proposed contents of the appeal book, be extended to 22 April 2010.

4. Pursuant to r 64.16(2)(a) the appeal be deemed not to have been abandoned.

5. Leave be given to amend the Notice of Appeal on or before 30 July 2010.

6. The application for a stay of execution, or of the proceedings under the judgment, and/or orders made by the trial judge on 22 March 2010 be refused.

7. Security for costs of the appeal be ordered against the applicant in the sum of $17,000, that sum to be paid to the Prothonotary in a form acceptable to him on or before 16 August 2010. Should that amount not be paid by 16 August 2010, the appeal be stayed.

8. It be a condition of orders 1 to 5 that the additional sum of $5,000 be paid to the Prothonotary in a form acceptable to him on or before 16 August 2010.

9. Costs of and incidental to this application be costs in the appeal.

10. This matter be listed before Lansdowne AsJ for directions on a date to be fixed.

[1] It was submitted on behalf of the respondent that the facts proved through the applicant's failure to respond to the Notice to Admit were essentially of a non-contentious nature.

[2] The authorities hold that the extent to which a judge is required to assist a self-represented litigant will vary according to the particular litigant and the nature of the case. See, for example, Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100, 130 (Bell J); and Russell v Yarra Ranges Shire Council [2009] VSC 486, [18] - [23] (Kaye J).

Court (General Civil Procedure) Rules 2005

At a glance

Court

Decision date

Before

Source

Judgment (68 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (1)