Solicitors:
In person (Applicant)
Emil Ford Lawyers (First and Second Respondent)
File Number(s): 15/21098
[2]
Mr Teh Applies for Leave to Appeal a Decision of Commissioners Almost 21 Months After the Decision is Handed Down
On 24 December 2013, Moore SC (as he then was) and Galwey AC dismissed (Bennett (as Trustee for Access Family Trust) v McLoughlin [2013] NSWLEC 1259) an application by Mr Steven Teh and Mr Craig Bennett, (the Trustee for Access Family Trust ("the Trust")), for orders pursuant to Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 in respect of a large Wallangarra White Gum (Eucalyptus scoparia) ("the tree") located on the property of the then respondent, Mr Brian McLoughlin.
Before the Commissioners the applicants had contended that the roots of the tree had caused damage to their property in a variety of ways, including cracking (see the description of the damage at [3] of the Commissioners' decision).
Mr McLoughlin has sadly since deceased. He passed away on 17 January 2016. As a consequence, the executors of his estate have been substituted as the respondents, namely, Mr Anthony Dormer and Mr Nigel Russell ("the executors").
Over 23 months after the decision was handed down, Mr Teh seeks leave to appeal against the decision of the Commissioners under s 56A of the Land and Environment Court Act 1979 ("the LEC Act"). Leave is required because Mr Teh is out of time within which to file his appeal.
Given the extraordinary length of time it has taken Mr Teh to file his application, given his unsatisfactory reason for the delay, given the remote prospect of success of the appeal, and given the prejudice that would be caused to the beneficiaries of Mr McLoughlin's estate if leave were granted to extend the time for commencing the appeal, I have declined to exercise my discretion to grant leave. This means that Mr Teh is now time barred from appealing against the decision.
These same reasons have also resulted in the conclusion that it is fair and reasonable that Mr Teh pay the respondents' costs of the application.
[3]
Legislative Framework Governing the Appeal
Section 56A of the LEC Act provides a right of appeal against the decision of the Commissioners on a question of law.
The time limit within which such an appeal must be filed is governed by r 7.1 of the Land and Environment Court Rules 2007 ("the LEC Rules") and not, as was submitted to me by the respondents, Pt 50 of the Uniform Civil Procedure Rules 2005.
Rule 7.1(1)(a) of the LEC Rules provides as follows:
(1) A person may commence proceedings in relation to an appeal, objection or reference to the Court:
(a) except as provided by paragraph (b), at any time within 60 days after the right of appeal, objection or reference first arises…
In other words, the appeal was required to be filed 60 days after the date the Commissioners published their reasons, namely, before 22 February 2014.
Plainly, therefore, the summons filed by Mr Teh on 1 December 2015 is out of time by a considerable degree (over 21 months).
The Court has discretion, however, under r 7.3 of the LEC Rules to extend the time for filing of the appeal:
7.3 Extension and abridgment of time
(1) The Court may, by order, extend or abridge any time fixed by these rules or by any judgment or order of the Court.
(2) The Court may extend time under this rule, either before or after the time expires, and may do so after the time expires even if an application for extension is made after the time expires.
In La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2014] NSWLEC 128, Craig J opined as to the operation of r 7.3 (at [7]-[10]):
7 …
That rule is expressed in substantially the same terms as r 1.12 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR). The object of a rule affording a discretion to grant an extension of time was stated by McHugh J in Gallo v Dawson (1990) 93 ALR 479 in the following terms at [2]:
"The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v. National Trustees Executors and Agency Co. of Australasia Ltd. (1978) VR 257, at p 262."
8 As subsequent cases have indicated, including cases in this Court, when determining whether a time limitation for commencing an appeal works an injustice, it is appropriate to consider the length of delay, the reasons for the delay, the extent of prejudice and whether there is an arguable case to be made by the party seeking the extension of time (Preston CJ in Jassls Pty Ltd v Valuer General [2006] NSWLEC 59 at [29], citing the decision of Lloyd J in Australand Holdings Pty Ltd v Hornsby Council [1998] NSWLEC 128).
9 Rule 1.12 of the UCPR has been the subject of a number of decisions in the Supreme Court. In Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104 it was said at [28]:
"The rule requires the exercise of a judicial discretion, not fettered by inflexible prescriptions: ...The discretion is to be exercised in the context of and by reference to the statute by which it is conferred (and any other statute that is relevant to the legislative context) and in accordance with principles developed by judicial decisions."
10 After reviewing a number of authorities, Ipp JA (Tobias and McColl JJA agreeing) said in Anderson at [43]:
" ... the Court should consider, when exercising a discretion such as that under UCPR r 1.12, the attempts that have been made at service, the length of the delay, the reasons for the delay, whether the delay was deliberate, whether notice was given to the defendant, the conduct of the parties generally, and the hardship or prejudice caused to the plaintiff by refusing the renewal or to the defendant by granting it."
…
[4]
Factors the Court Will Have Regard to in Extending Time to Appeal
Distilling the authorities above, the factors the Court will have regard to in determining whether to exercise its discretion to extend time to file a summons include, but are not limited to:
1. the history of the proceedings;
2. the conduct of the litigation;
3. the nature of the litigation;
4. the length of the delay;
5. the reasons for the delay;
6. the prejudice to the parties if the extension of time is, or is not, granted; and
7. the strength of the applicant's case.
In weighing up those factors the Court must bear in mind that "the Court will extend time where not to so would work an injustice" (Currabubula & Paola v State Bank NSW [2000] NSWSC 232 per Einstein J at [87]).
[5]
Evidence of Mr Teh
In addition to the transcript of the proceedings before the Commissioners, Mr Teh relied upon a detailed statement filed with the Court. The statement was unsworn, however, this was remedied by Mr Teh confirming the truthfulness of its contents in the witness box.
Summarised, the statement deposed to the following factual matters (excluding for present purposes, the submissions also contained in that document):
1. after the judgment was delivered on 24 December 2013, the first applicant, Mr Bennett (the Trustee of the Trust) told Mr Teh that the Trust did not want to appeal the decision and was unwilling to fund any appeal;
2. that Mr Teh had a "bona fide intention" to appeal the Commissioners' decision but that he did not lodge an appeal because of Mr Bennett's refusal to use trust funds to pay for it and because he "did not have any confidence in having the matter heard in the same court";
3. that Mr Bennett insisted that Mr Teh first file a complaint with the Chief Judge of the Court about the bias of the Commissioners and to seek judicial review;
4. as a consequence, Mr Teh wrote to the Chief Judge of the Court in October 2014 complaining about the misconduct of the Commissioners. His complaints included that the applicants had been denied natural justice and that the Commissioners were biased. Mr Teh asked for a judicial review of their decision;
5. the Chief Judge sent a detailed reply to Mr Teh on 19 December 2014, dismissing the complaint of misconduct but advising Mr Teh that he had a right of appeal under s 56A(1) of the LEC Act against the decision of the Commissioners on a question of law (the salient parts of the letter set out below);
6. although disappointed with the response, Mr Teh believed that the time to appeal had already passed and that the prospects of obtaining leave for time to be extended were "very slim as there was no new evidence to provide to the court";
7. however, in or around August 2015 a new crack appeared on the north boundary and an existing crack on the concrete floor of the basement rumpus room moved further south and reached the south wall. Mr Teh believed that this was a "very strong indication that the commissioners were wrong in their findings and on questions of law, and decided to appeal and seek leave to extend time";
8. thus, in August 2015 Mr Teh requested Mr McLoughlin's solicitor, Mr Patrick O'Brien, whether or not he could view the new damage and deteriorating existing cracks. Mr O'Brien never replied to his emails; and
9. in or around October 2015 Mr Teh decided to appeal the Commissioners' decision. Initially he attempted to appeal to the Supreme Court under s 57 of the LEC Act, but the registry of that Court referred him to this Court, and in November 2015 he applied for leave to appeal and for an extension of time to do so.
Mr Teh tendered the Access Family Trust Deed, together with a Deed of Retirement and Appointment of New Trustee dated 18 March 2004 (appointing Mr Bennett as the Trustee), and a Deed of Variation to Trust Deed effective 18 March 2014 (together "the Trust Deed"), noting the appointment of Mr Bennett as Trustee but excluding him from becoming a beneficiary under the Trust in the future. The Trust Deed indicates that in addition to Mr Teh, Mr Christopher Teh, Ms Angela Teh, Mr Edward Teh, Ms Christine Teh and Ms Montana Teh are all beneficiaries under the Trust.
It was not a matter of dispute that the Trust was the registered proprietor of the damaged property the subject of the proceedings before the Commissioners.
The cross-examination of Mr Teh revealed the following evidence:
1. that the property the subject of the damage was Mr Teh's second residence. The Trust also owned a property in the Blue Mountains, which is Mr Teh's primary residence;
2. that the summons was not filed in November 2015 but on 1 December 2015; and
3. that Mr Teh was not a trained arborist but holds a degree in architecture, although he noted that he was not registered to practice as an architect.
When asked by the Court why he had delayed filing a s 56A appeal by almost year after the Chief Judge's letter to him in December 2014, Mr Teh stated from the bar table that he had not been idle during this period and had written to ICAC and to the Attorney-General to complain about the Commissioners' decision. None of these facts, however, appeared in his statement or were stated while he was giving sworn testimony. I place no weight on them.
[6]
Evidence of the Executors
The executors relied on an affidavit of Mr Nigel Russell sworn 14 April 2016. As indicated above, Mr Russell is one of the executors of the estate of Mr McLoughlin. In it Mr Russell stated that:
Had the applicant prosecuted this claim diligently and in accordance with the time requirements then the estate would not have been left with the uncertainty which now exists for the beneficiaries.
Mr Russell was cross-examined by Mr Teh during which he relevantly said the following:
1. that probate would in all likelihood be granted imminently. Accordingly, the "uncertainty" that he referred to in his affidavit arose as a result of these proceedings because in order to distribute the proceedings of the estate amongst the beneficiaries of Mr McLoughlin's will, the property on which the offending eucalypt was located was required to be sold. In addition to these proceedings, Mr Teh had also commenced proceedings in the Local Court to gain access to Mr McLoughlin's property where the tree is located. The effect of both sets of proceedings will be to delay the sale of the property, and therefore, delay the distribution of the estate to its beneficiaries, and/or to cause a decrease in the value of the property to be sold upon probate being granted;
2. that Mr McLoughlin had already incurred approximately $40,000 worth of expenses in defending the proceedings before the Commissioners and that the estate did not wish to incur any further expenses; and
3. that Mr McLoughlin had been "very upset" by the filing of the summons to appeal by Mr Teh.
The executors also relied upon the response from the Chief Judge of this Court dated 19 December 2014. In that letter the Chief Judge advised Mr Teh of the following:
As an applicant in the proceedings, you had a right of appeal under s 56A(1) of the Land and Environment Court Act 1979 ('the Court Act') against the order and decision of the Commissioners on a question of law. Your allegations that the Commissioners were biased or denied you procedural fairness raised questions of law. An appeal under s 56A(1) against the Commissioners' decision was required to be brought within 60 days of the decision being made (which was on 24 December 2013). However, application can be made to the Court to extend the time within which to appeal. Any such application would need to be supported by evidence and submissions satisfactorily explaining the reasons for the delay, any possible prejudice or injustice to you and Mr McLoughlin by extending or not extending the time, and the merits of the arguments involved in the proposed appeal (including the strength of the arguments that the decision was erroneous on questions of law).
I am not able, and it is not appropriate, to provide any advice to whether you should apply for an extension of time to appeal, then to appeal, or as to the likely prospects of success of any such application or appeal. You will need to seek you[r] own advice on these matters.
…
For these reasons, I find that your complaints of misconduct by the Commissioners in hearing and determining your application under the Trees Act are not substantiated. Moreover, your various allegations of bias and errors in the evidentiary rulings, findings and inferences of fact, and interpretation and application of the law by the Commissioners were subject to adequate appeal rights under s 56A(1) of the Court Act.
[7]
The Extension of Time to File the Appeal Must be Refused
It is convenient to deal with the submissions of the parties within the context of examining the factors the Court must take into account referred to above.
[8]
The History of the Proceedings and the Conduct of the Litigation
These have been described above in sufficient detail. Other than the delay by Mr Teh in filing the appeal, which is dealt with below, these factors are neutral.
[9]
The Nature of the Proceedings
As Mr Teh correctly noted, proceedings in Class 2 of the Court's jurisdiction are not attended with the same degree of formality that matters in other classes of the Court's jurisdiction are, for example, Class 4.
It was for this reason, he stated, that he had represented himself when the matter was before the Commissioners (and which may explain why the proceedings took three days) and it is for this reason that he is currently unrepresented. Thus, the Court ought to exercise leniency towards him in respect of this application.
The Court has done just that as evidenced by permitting him to file late the Trust Deed; by granting him an extension of time to file his written submissions; by allowing him to cross-examine Mr Russell notwithstanding that no notice had been given of his intention to do so (a short adjournment was required to enable Mr Russell to attend); by the length of time afforded to him to make his oral submissions; and by generally allowing him considerable latitude in the conduct of his application for an extension of time.
While such leniency was appropriate given Mr Teh's unrepresented status, it does not, however, as Mr Teh appeared to suggest, mandate that the Court grant him the extension he seeks, especially given the length of the delay concerned and his unsatisfactory explanation for that delay (discussed immediately below).
[10]
The Length of the Delay and the Reasons for the Delay
On any view, the delay is extraordinary: over 21 months.
Mr Teh's explanation for the delay is, in my opinion, wholly unacceptable and is riddled with inconsistencies. For example he does not explain why:
1. notwithstanding that he initially did not seek to file an appeal because he did not have any confidence that he would receive a fair hearing in the Court, he has now elected to do so;
2. if Mr Bennett had insisted that he file a complaint with the Chief Judge before instituting an appeal, he waited almost a year to do so;
3. he did not follow the clear advice given to him by the Chief Judge as to his right to file the very appeal that he has now sought to file, but instead filed an appeal in the Supreme Court almost a year later;
4. he waited almost a year, in any event, to file proceeding in the Supreme Court; and
5. if he had believed that new evidence was required to file an appeal (contrary to the advice given by the Chief Judge in his letter in December 2014), that when the new cracks appeared in August 2015, he did not file an appeal then but waited over three months to do so.
Given the magnitude of the delay in question, the Court could reasonably expect a very compelling explanation for it. This has not been proffered by Mr Teh.
[11]
Prejudice to the Parties
Given that Mr McLoughlin has since deceased, there is real prejudice that will be suffered by the executors to his estate if leave is, after this length of time, granted to Mr Teh.
Because a s 56A appeal is founded upon a question of law, it is true that the fact that Mr McLoughlin has since passed away mutes the prejudice the executors may suffer if leave to file late is permitted. But this observation belies the particular potential complexity of the appeal.
As is elaborated upon further below, Mr Teh claims that the Commissioners were biased and that he was denied procedural fairness. Some of these allegations are founded upon events that took place during a site visit during which proceedings were not recorded. The principal witness available to give evidence refuting these grounds is now dead. The prejudice to the executors is therefore obvious.
More importantly, as the evidence of Mr Russell demonstrates, real prejudice will be suffered by the beneficiaries of the estate (wholly innocent third parties to these proceedings) if leave is granted either by delaying, devaluing, or both, the proceeds of the distributed estate.
By contrast, Mr Teh argued that if leave to extend was not granted he would suffer prejudice by reason of the ongoing damage to "his property". This prompted an inquiry from the Court into his legal interest into the property. Mr Teh responded that he was "the beneficial owner" of the property pursuant to the Trust.
While the late tender of the Trust Deed did show that Mr Teh was in fact a beneficial owner of the property the subject of the Class 2 proceedings, it did not demonstrate that he was "the beneficial owner", rather it showed that he was one of six beneficial owners. Nevertheless, if, as he claims, his property is continuing to be damaged by the tree the subject of the unsuccessful challenge before the Commissioners, the failure to grant him leave will cause him some prejudice.
Having said this, given that Mr Teh asserts that there is new damage to his property, it may be possible for him to commence fresh proceedings (Hinde v Anderson [2009] NSWLEC 1148). This has the effect of ameliorating (but not, it must be acknowledged, eliminating) his claim of prejudice.
Weighing up the unfairness to each party of either granting or refusing leave to extend time, I find that the prejudice to the executors if leave is granted vastly outweighs any prejudice to Mr Teh if leave is not granted.
[12]
The Strength of Mr Teh's Appeal
The Court is required to assess the strength of Mr Teh's case. This does not mean that the Court must determine in advance the likely issues raised on appeal, rather it must consider, at a preliminary level, the relative merits of his case, or in other words, whether Mr Teh has a reasonably arguable case.
The making of such an assessment necessitated an examination of the grounds of appeal relied upon by Mr Teh, bearing in mind that only questions of law may give rise to an appeal under s 56A of the LEC Act.
As I understood it, Mr Teh's challenge to the Commissioners' decision comprised the following grounds of appeal. First, bias, both actual and apprehended, and a denial of procedural fairness based on the Commissioners' conduct during the hearing and at the site visit. Bias, in any form, and a denial of procedural fairness, both give rise to questions of law.
This was evident, according to Mr Teh, from the wholesale rejection of his expert evidence and prejudgment on the part of the Commissioners as to the cause of some of the cracking (rotational forces). Mr Teh also accused the Commissioners of bias on the basis of his race (he is Asian). No evidence whatsoever was relied upon by Mr Teh to support this very serious, and in the absence of any proof, scandalous allegation.
The portions of the transcript that Mr Teh relied upon in support of his assertions in this regard did not reveal any error in the relevant sense by the Commissioners. Rather, they revealed a preference by the Commissioners of certain expert evidence over other expert evidence. Provided the Commissioners gave adequate reasons for doing so, this does not give rise to appealable error. Neither does Mr Teh's compliant as to the inadequacy of the weight attributed to the applicants' evidence.
Second, that there was no evidence for the conclusion by the Commissioners that rotational forces caused some of the cracking. This gives rise to a question of law.
The Commissioners' dealt with this issue as follows (at [14]-[21]:
14 In addition to the cracking in the rendering of the northern wall, during the course of the site inspection of the property upon which the tree is located, we observed that one of the engaged piers had, on the respondent's side of the wall, a wooden post fixed to it by masonry anchors with that post supporting the eastern end of a foldout clothesline. We observed horizontal cracking of this pier at several courses of bricks above the ground but below the bottom end of the wooden post. This cracking is consistent only with rotation of the pier rather than vertical displacement of it (as would be the case if the wall were being lifted and cracked by tree roots growing underneath it).
15 The cracking, the experts agreed, is, at this time, merely cosmetic and not structural.
16 The evidence of Mr Paheerathan was that the rotational cracking in the vicinity of this post was not likely to have been caused by any load transferred to the pier by the clothesline and its supporting post. We did not understand Mr Candarakis disagreed with this position. It was Mr Paheerathan's position that the cracking of this wall was caused by the roots of the tree.
17 On the other hand, Mr Candarakis expressed the opinion that the cracking was caused by what he called "brick growth", a phenomenon that occurs in new brickwork as the bricks expand slightly, over time, after they are erected. He considered this phenomenon was present because portion of the old brick wall had, closer to the applicants' dwelling, been replaced with new brickwork that had been erected as part of the renovations in the recent past. In support of this proposition, he pointed to the fact that the cracking was generally uniform in nature from top to bottom and that that was, in his opinion, consistent with lateral forces impacting the brickwork rather than of a vertical displacement. Finally, we understood the evidence of Mr Candarakis to be that the brickwork would stabilise over time thus diminishing (if not eliminating) the likelihood of further brick growth phenomenon occurring.
18 There was no appreciable or significant difference in appearance or width in any of the lower and upper elements of the cracking.
19 Mr Paheerathan relied on the evidence of Mr Ford (Exhibit B) as to the presence of tree roots through and/or under this wall as providing evidence of the cause of the cracking. There also is a photo forming part of the material attached to Mr Melinz 's report (Exhibit H photo MKA 002) that shows tree roots penetrating, from the direction of the tree, under this wall. Mr Ford also excavated the more recent landscaping (placed after extensive root clearing of the rear yard by the applicants) to find several small roots growing from the direction of this wall. He undertook a tissue analysis of samples from these roots and identified them as Eucalyptus sp. He analysed three other samples taken randomly from a pile of other roots removed by the applicants during the earlier clearance of their rear yard - these roots were also shown to be from a eucalypt (Exhibit B at 11 and 12 and photos 7 and 8).
20 The fact that the cracking of the pier observed from the tree side of the fence is of a rotational nature provides evidence of lateral displacement supportive of the proposition advanced by Mr Candarakis. The presence of tree roots, however, provides evidence that such roots are also likely to have contributed, at least to some extent, to the cracking of this wall. As a consequence, we consider that both explanations are valid and the cracking has been caused by a combination of the two hypothesised causes.
21 We consider it likely, from a combination of the lateral displacement of the rotated pier and the generally vertically uniform nature of the cracking, the predominant cause of the past damage has been brick growth. It is not necessary to quantify precisely the extent to which we consider that the tree's roots have contributed to the damage to this wall - as it is sufficient, for the first of the jurisdictional tests, to be satisfied that the tree has made some contribution to the damage to this wall.
From these reasons it is clear that there was ample evidence to support the findings made by the Commissioners. It is unlikely, therefore, on the material presented before me that this ground would succeed.
Third, manifest unreasonableness or illogicality (also questions of law, assuming, for present purposes, that the latter ground is capable of constituting a separate ground of appeal) arising out of the fact that the Commissioners found (at [21], see above) that the tree had made some contribution to the damage to a wall on the applicants' property but that they did not grant any relief to the applicants.
But this submission fails to address the careful and comprehensive discretionary reasons the Commissioners gave for why no intervention with, or removal of, the tree was ordered. Rather, it appears that Mr Teh simply does not accept the result. No obvious error is revealed in the Commissioners reasons.
Fourth, that the Commissioners took into account an irrelevant consideration in their consideration of the cracking of a concrete slab, the slab having been constructed as part of an extensive process of renovations of the applicants' property in 2009 (renovations that were given approval by Leichardt Council in or around 2002, according to Mr Teh). The irrelevant matter was a 2009 design standard for construction near trees (a copy of which was not before the Court on the application).
The Commissioners held that the failure to take into account the obvious existence of the tree in designing the slab, having regard to the standard, was a factor that they could have regard to in the exercise of their discretion to grant relief (at [93]-[94]).
Mr Teh submitted that the standard was irrelevant because development approval had been given to the renovations in 2002, that is to say, at a time when the design standard had not yet been promulgated.
However, this submission ignores the fact that the slab was constructed in 2009, not 2002, and the fact that in light of other findings by the Commissioners it was "unnecessary to determine what weight (if any) would be appropriate to be attributed to this factor in this case" (at [95]). In other words, the later design standard informed no part of their ultimate decision-making.
In my opinion, while reluctant to describe the strength of Mr Teh's case as 'hopeless', I am nevertheless confident on the material presented before me that Mr Teh's appeal enjoys no reasonable or rational prospects of success.
[13]
Summary
Weighing up the factors discussed above, the overwhelming conclusion to be arrived at is that leave to extend the time within which to commence his s 56A appeal must be refused.
[14]
Costs of the Application
The executors seek an order that Mr Teh pay the costs of the application to extend time.
Because these are proceedings in Class 2 of the Court's jurisdiction, costs do not follow the event. Rather the Court may only order costs against a party if it is fair and reasonable in the circumstances to do so (r 3.7(2) of the Land and Environment Court Rules 2007 ("the LEC Rules")).
Rule 3.7(3) of the LEC Rules lists (not exhaustively) some of the circumstances in which a Court might consider that it is fair and reasonable to make an award of costs against a party. It provides that:
(3) Circumstances in which the Court might consider the making of a costs order to be fair and reasonable include (without limitation) the following:
(a) that the proceedings involve, as a central issue, a question of law, a question of fact or a question of mixed fact and law, and the determination of such question:
(i) in one way was, or was potentially, determinative of the proceedings, and
(ii) was preliminary to, or otherwise has not involved, an evaluation of the merits of any application the subject of the proceedings,
(b) that a party has failed to provide, or has unreasonably delayed in providing, information or documents:
(i) that are required by law to be provided in relation to any application the subject of the proceedings, or
(ii) that are necessary to enable a consent authority to gain a proper understanding of, and give proper consideration to, the application,
(c) that a party has acted unreasonably in circumstances leading up to the commencement of the proceedings,
(d) that a party has acted unreasonably in the conduct of the proceedings,
(e) that a party has commenced or defended the proceedings for an improper purpose,
(f) that a party has commenced or continued a claim in the proceedings, or maintained a defence to the proceedings, where:
(i) the claim or defence (as appropriate) did not have reasonable prospects of success, or
(ii) to commence or continue the claim, or to maintain the defence, was otherwise unreasonable.
The executors submitted that subparagraphs (c) and (f) were relevant and that the evidence disclosed conduct of this nature sufficient to justify an award of costs in their favour.
I agree. In my view, the executors ought to be awarded the costs of the application. The conduct detailed above by Mr Teh resulting in his extraordinary delay in filing this application, for which no adequate, let alone any appropriate, reason has been given by him warrants that a costs order be made. The delay has resulted in unnecessary costs to his estate for which it ought to be compensated.
These circumstances, together with the extremely remote likelihood of any reasonable prospects of success of this application result in the conclusion that it is fair and reasonable that Mr Teh pay the executors' costs of the application.
[15]
Conclusion and Orders
The orders of the Court are therefore as follows:
1. the application for an extension of time is dismissed;
2. the applicant is to pay the respondents' costs of the application; and
3. the exhibits are to be returned after the publication of these reasons on the internet.
[16]
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: 26 April 2016