Azure 10-16 Marquet Street Rhodes Pty Ltd v Lau

[2012] NSWCA 299

Court of Appeal

New South Wales

Case Title:

AZURE 10-16 MARQUET STREET RHODES PTY LTD v LAU

Medium Neutral Citation:

[2012] NSWCA 299

Hearing Date(s):

14 September 2012

Decision Date:

14 September 2012

Jurisdiction:

Before:

Barrett JA

Decision:

The application for an extension of time made by the notice of motion of 20 July 2012 and now pursued alone by Mr Bhanji is dismissed with costs.

[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.]

Catchwords:

PROCEDURE - extension of time for filing of application for leave to appeal - no matter of principle

Legislation Cited:

Cases Cited:

Texts Cited:

Category:

Interlocutory applications

Parties:

Altaf Bhanji - Applicant
Yan Fai Lau - First Respondent
Suet Wang Cheung - Second Respondent
Lawrence Nguyen - Third Respondent
Joseph Sue - Fourth Respondent
Chi Thuy Vu - Fifth Respondent

Representation

- Counsel:

S El-Hanania - Applicant
P Mitchell - Respondents

- Solicitors:

Saba El-Hanania Lawyer - Applicant
Peter Mitchell Law Practice - Respondents

File number(s):

2012/97455

Decision Under Appeal

- Court / Tribunal:

- Before:

Pembroke J

- Date of Decision:

30 June 2011

- Citation:

No citation

- Court File Number(s)

2007/254102

Publication Restriction:

JUDGMENT

1. I am dealing with a notice of motion filed on 20 July 2012 by which, as things now stand, Mr Bhanji alone seeks an extension of time for the filing and service of a summons seeking leave to appeal.

2. The relevant proceedings at first instance were determined by Pembroke J in the Equity Division. Five individuals sought relief against three companies and Mr Bhanji. Pembroke J made orders on 30 June 2011 that two of the companies, being Azure 10-16 Marquet Street Rhodes Pty Ltd and Azure Property Group Holdings Pty Ltd, together with Mr Bhanji, pay certain moneys to each of the several plaintiffs.

3. The moneys concerned arose from compromises of claims generated by conveyancing transactions that did not proceed to completion. The individual plaintiffs in whose favour the orders of Pembroke J were made were purchasers of units in a home unit development. The vendor was Statewide Developments Pty Ltd. One or other or both of the two Azure companies played an agency or intermediary role in relation to the marketing of the units by Statewide. In that capacity, the Azure companies received certain moneys and arrangements were entered into and varied from time to time regarding the disposition of those moneys.

4. The moneys were, in substance, payable by Statewide to the individuals following compromise of the conveyancing claims but there was an issue between Statewide and the Azure companies as to the right of the Azure companies to retain thereout moneys for commission and the like.

5. In the orders that Pembroke J made, no provision for deduction for commissions claimed by the Azure companies was made.

6. The case that Mr Bhanji would seek to make on appeal (he being one of the three entities required by the orders to make the payments and the only one pursuing the possibility of appeal) is that some such deduction should have been allowed and that the orders of Pembroke J should be varied in that respect. It would be said on appeal that Pembroke J had not appropriately recognised the effect of certain directions and agreements that had been entered into.

7. On an application of this kind, chronology is very important. The orders of Justice Pembroke were made, as I have said, on 30 June 2011. The two Azure companies and Mr Bhanji filed a notice of intention to appeal on 29 July 2011. That was within time and set running a period of three months for the initiation of appeal proceedings by the appropriate means.

8. The Azure companies and Mr Bhanji filed a summons seeking leave to appeal on 27 March 2012.

9. The notice of motion with which I am now dealing, seeking an extension of time to file a summons for leave to appeal, was filed on 20 July 2012.

10. At some point, the two Azure companies ceased to pursue the proposed appeal and the related applications.

11. When the notice of motion came on for hearing today, there was an appearance for Mr Bhanji. Mr El-Hanania represented him and indicated that the two Azure companies are no longer pursuing the appeal and any preliminary steps.

12. There are four matters to be considered on an application of this kind. The first goes to the question whether the applicant has a reasonably arguable case on appeal.

13. Having regard to the material to which I have been taken, I think that there is some argument that there is a case to be pursued on appeal but it does not seem to me to be a strong argument. The disputed entitlements arise as between Statewide and the Azure companies and, on the face of things, while the individuals may have directed that moneys payable to them by the Azure companies be paid to Statewide, the matter of deduction for or accounting for commission and like entitlements was not one that directly involved them.

14. On the whole, I would regard the prospects of success on appeal as not particularly strong.

15. I pass, therefore, to the second relevant matter which is the length of the delay.

16. The chronology I have outlined indicates that the first step by Mr Bhanji (and I refer to him alone now because he is the only active party) was taken within time when he filed the notice of intention to appeal on 29 July 2011. Thereafter, there was a period of five months until a summons seeking leave to appeal was filed, and it was, of course, filed in the absence of any extension of time. It was well and truly out of time.

17. The summons seeking leave to appeal, as I have said, was filed on 27 March 2012.

18. There was then another interval of almost four months until 20 July 2012 when this present motion seeking an extension of time to file the summons for leave to appeal was filed.

19. Mr Mitchell, who appeared for the several plaintiffs, has referred to the times at which service of various documents took place, necessarily, of course, some little while after filing; but in the scale of the delay - five months plus four months - the few days taken for service is neither here nor there. The delay must be regarded as substantial delay, even gross delay.

20. That leads to the third factor to be taken into account, that is the reason for the delay. Mr Bhanji gives one reason only, that is that he was busy on other litigious matters. He has given in his affidavits an account of various pieces of litigation in which he and the Azure companies were involved over a long period centred on the relationship with Statewide and the property developments in which Statewide was involved.

21. The material in Mr Bhanji's affidavit of 30 July 2012 and its accompanying exhibits makes generalised statements about matters to which he was required to attend and the amount of time and effort that they entailed for him. They were matters in which the primary participants were the Azure companies and it is made clear that those companies were, as it were, one man companies with the only human being active in their affairs, leaving to one side outside consultants, being Mr Bhanji himself.

22. But there were outside consultants and that takes me to the second aspect of the material Mr Bhanji has put forward.

23. In the affidavit to which I have referred, there is a long catalogue of items, running to over 200 in number, giving details of particular events. But the descriptions of events are largely uninformative as to time required. If one looks at item 37, 10 October 2011, the description is "engaged barrister David Raphael". That could have taken five minutes or five hours. Number 38 is "receive memorandum of advice David Raphael, eleven pages". Number 39 is of the next day, "receive memorandum of advice David Raphael, nine pages". Also on 11 October, is item 40, "receive memorandum of advice David Raphael, one page".

24. So, on 10 and 11 October there is the engaging of David Raphael and the receipt of three memoranda of advice from him totalling twenty pages. One cannot but think that there must have been time to do other things on these days. I need not go through the whole list, the pattern is the same.

25. The explanation for the delay is unsatisfactory. The present matter was one which appears to have taken its place alongside other matters of legal controversy and litigation to which Mr Bhanji had to devote his attention. There is no satisfactory explanation at all as to why the others took precedence and this one was put into the background for an effective total of the order of nine months.

26. The fourth matter to be considered on an application of this kind is the prejudice to the other affected parties. That is obvious. The individuals in favour of whom the orders were made have, since 30 June 2011, been kept out of the money that the orders entitle them to have.

27. The appeal, if it were to eventuate, would involve no question of public importance or significant legal issue.

28. For all these reasons, but in particular because of the gross and quite unsatisfactorily explained delay, the application for an extension of time made by the notice of motion of 20 July 2012 and now pursued alone by Mr Bhanji is dismissed with costs.

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