ADIZES v Jakov
[2009] WASCA 9
•3 APRIL 2008
ADIZES -v- JAKOV [2009] WASCA 9
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2009] WASCA 9 | |
| THE COURT OF APPEAL (WA) | 13/01/2009 | ||
| Case No: | CACV:24/2008 | 3 APRIL 2008 | |
| Coram: | PULLIN JA | 3/04/08 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application for extension of time dismissed | ||
| B | |||
| PDF Version |
| Parties: | ZAK ADIZES NIKOLA JAKOV ADRIAN BOWMAN GOOLD |
Catchwords: | Appeal against a decision altering the award of an arbitrator Application for extension of time Turns on own facts |
Legislation: | Nil |
Case References: | Gallo v Dawson (1990) 64 ALJR 458 Girando v Girando (1997) 18 WAR 450 Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ADIZES -v- JAKOV [2009] WASCA 9 CORAM : PULLIN JA HEARD : 3 APRIL 2008 DELIVERED : 3 APRIL 2008 PUBLISHED : 13 JANUARY 2009 FILE NO/S : CACV 24 of 2008 BETWEEN : ZAK ADIZES
- Appellant
AND
NIKOLA JAKOV
First Respondent
ADRIAN BOWMAN GOOLD
Second Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : TEMPLEMAN J
Citation : JAKOV -v- ADIZES & ANOR [2007] WASC 46
File No : ARB 6 of 2006
(Page 2)
Catchwords:
Appeal against a decision altering the award of an arbitrator - Application for extension of time - Turns on own facts
Legislation:
Nil
Result:
Application for extension of time dismissed
Category: B
Representation:
Counsel:
Appellant : In person
First Respondent : Mr P J Marsh
Second Respondent : No appearance
Solicitors:
Appellant : In person
First Respondent : Stoddart & Co
Second Respondent : In person
Case(s) referred to in judgment(s):
Gallo v Dawson (1990) 64 ALJR 458
Girando v Girando (1997) 18 WAR 450
Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516
(Page 3)
1 PULLIN JA: This is an application for an extension of time in which to appeal against the judgment of Templeman J which was delivered on 27 February 2007. The notice of appeal was filed more than 12 months after that, on 10 March 2008, so we are dealing with a very substantial delay.
2 If an extension is to be granted I have to bear in mind there is a distinction between the discretion to extend time to institute an appeal and circumstances where the appeal has already been instituted and the extension is concerned only with procedural steps. See Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516.
3 The matters which have to be considered when deciding whether an extension of time within which to institute an appeal should be granted are that the respondent has a vested right to retain the judgment, the length of the delay, the reasons for the delay, whether there is an arguable case on the appeal and the extent of any prejudice to the respondent. The need for a cogent explanation increases as the time increases. See Girando v Girando (1997) 18 WAR 450, 454 - 455.
4 The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. If the court is to determine that the rules will work an injustice it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application for extension of time. See Gallo v Dawson (1990) 64 ALJR 458, 459; Girando, 454.
5 The background is that Templeman J was dealing with the respondent's application for leave to appeal pursuant to section 38(2) of the Commercial Arbitration Act 1985 (WA). This was in relation to an arbitration which had arisen as a result of a contract between the parties concerning the construction of a house in Subiaco. The dispute had been resolved by an arbitrator, who awarded $40,016.33 to the builder (the appellant) and $40,810.56 to the owner (the respondent) on a counterclaim, with no order as to costs. The consequence of that was a slight difference where the owner succeeded to the tune of a net difference of $794.23.
6 Templeman J dealt with the points raised by the builder and as a result reached the conclusion that the amount awarded to the owner should be reduced by $29,385, which had the consequence that now the owner had to pay the builder the net difference of $28,590.77.
(Page 4)
7 In relation to two of the items where Templeman J made his orders, there may be errors. One of them relates to a figure of $10,784 in relation to what is called the garage door opening dispute [87]. At [45] there is another figure of $8994.70 including GST which his Honour said was the amount awarded in relation to the garage door. It appears that his Honour may have made an error and that the latter figure should have been the amount referred to by his Honour in paragraph 87. Mr Marsh, appearing for the respondent at the hearing on 3 April 2008, has undertaken to examine this and if that is indeed an error that under the slip rule he will return to Templeman J and ask that, or perhaps by consent order, ask Templeman J to correct the judgment in that respect.
8 There is a second aspect where there may have been an error and that is in relation to the costs order where I am told that a costs order was made which may have adjusted the amount which had to be paid to the arbitrator as opposed to the legal costs of the litigation and the legal costs of the parties. Once again Mr Marsh has undertaken to examine that and to make sure that the order does not interfere with the agreement of the parties that they would share equally in the arbitrator's costs.
9 Putting aside those two points, I am not satisfied that there has been any error demonstrated in his Honour's reasons for decision in relation to the other points. As to the very long delay in making this application for an extension of time and the very long delay in filing the appeal notice, the appellant says that there are really two reasons why he did not appeal earlier.
10 One was because of the ill health of his mother. The appellant states that between March and October 2007, he made frequent trips to Europe to visit his mother because of an illness that his mother was suffering and unfortunately his mother passed away in October 2007. He said that he went four times to Europe and spent between two to four weeks with his mother on each occasion, organising private care and hospitalisation. Naturally one can see that would have taken his mind off this litigation and the possibility of an appeal.
11 But of course, there was time outside that and the appellant was legally represented for a considerable period of time, through until November last year. He says that there was discussion about the appeal and he complains about the advice that was given to him by his solicitors, but that is a matter that concerns the appellant and his solicitors, and not the appellant and the respondent.
(Page 5)
12 In my opinion there is not a satisfactory explanation for the very long delay in commencing the appeal. I also note that the appeal was instituted at the time taxation of costs was about to take place. Whether the appellant thought that by appealing he might achieve a delay in that taxation I do not know, and it may have been a coincidence that he did file his appeal notice at that time. In any event, it is a very long time between Templeman J's judgment and the filing of the notice of appeal and there is not a satisfactory explanation for the delay. In addition, in the meantime the appellant has paid the judgment sum. That was a considerable time ago and the respondent has employed that money in reducing debt, among other things.
13 For all of those reasons I consider that the application for the extension of time should be dismissed and the result will be that I will order that the application for an extension be dismissed, but direct that it not be sealed until these two other matters have been dealt with.
14 The above reasons were given orally on 3 April 2008. Since 3 April 2008, the parties have consented to an order by Templeman J correcting the judgment under the slip rule in relation to the error concerning the amount relating to the garage door. The other aspect referred to in [8] above has also been dealt with. As a result the order dismissing the application for an extension of time may now be sealed.
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