Chamakala v 7-Eleven Stores Pty Ltd
[2010] VSCA 10
•5 February 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 3853 of 2009
| THOMAS LIUKOSE CHAMAKALA & ANOR | |
| Applicants | |
| v | |
| 7-ELEVEN STORES PTY LTD (ACN 005 299 427) | Respondent |
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JUDGES: | BONGIORNO JA and HANSEN AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 5 February 2010 | |
DATE OF JUDGMENT: | 5 February 2010 | |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 10 | |
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PRACTICE AND PROCEDURE — County Court — Judgment — Extension of time to appeal — Subsequent costs order — Extension of time to appeal and leave to appeal — Stay of execution of costs order — Applications refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicants | Mr MSR Clarke | Chadwicks |
| For the Respondent | Mr SR Horgan SC | Slater & Gordon |
BONGIORNO JA:
I will ask Hansen AJA to give the first judgment.
HANSEN AJA:
This application by summons filed on 18 September 2009 seeks:
(a)Pursuant s 74(2A) of the County Court Act 1958, an extension of time in which to appeal against the orders of Judge Jenkins made in the County Court on 27 March 2009, that judgment be entered for the defendant and that the proceeding be otherwise dismissed;
(b)Pursuant to r 64.03(3), an extension of time in which to seek leave to appeal against costs orders of Judge Jenkins made on 4 August 2009, and, pursuant to s 74(2E) of the County Court Act 1958, leave to appeal against those orders; and
(c)A stay of execution of the costs orders pending determination of the appeal.
The subject proceeding was instituted by four plaintiffs, three being individual persons and the fourth a company called JMJ Traders Pty Ltd. The four individuals had formed JMJ Traders for the purpose of purchasing a 7-Eleven franchise in Sunbury, which JMJ did by entering into an agreement with the defendant, 7-Eleven Stores Pty Ltd, in August 2004.
Relying on a series of representations alleged to constitute a contravention of s 52 of the Trade Practices Act 1974 and s 9 of the Fair Trading Act 1999, the plaintiffs claimed damages. As to the three individuals, the statement of claim alleged that as a consequence of the representations, they dissolved their partnership in JMJ Traders, sold the Sunbury store and suffered loss and damage. As to JMJ Traders, the statement of claim claimed $556.80 as a balance owing.
Two of the individuals accepted an offer of compromise prior to trial. The remaining individual and J & J Traders continued the proceeding and they are the present applicants.
The proceeding was tried by Judge Jenkins over four days in October 2008. Her Honour reserved her decision and gave judgment on 27 March 2009. Her Honour dismissed the proceeding and reserved the question of costs. In her reasons, expressed thoroughly and with care, her Honour rejected the plaintiff’s case at every level. In summary, for reasons she detailed, she was not satisfied on the balance of probabilities that:
(a)there was any evidentiary basis for the alleged representations;
(b)any such representations were misleading or deceptive;
(c)there was any correlation between any such representations and any purported reliance upon them as causing the sale of the business; and
(d)there was any credible basis for the losses alleged.
Following a further hearing and the provision of written submissions on costs, on 4 August 2009 Judge Jenkins provided her ruling on costs. Relevantly her Honour ordered that:
(a)the four plaintiffs pay the defendant’s costs up to and including 19 March 2008; and
(b)the applicants pay the defendant’s costs from 20 March 2008 until 7 October 2008 as between solicitor and own client; and from 8 October 2008 on an indemnity basis.
The applicants seek leave to appeal in respect only of Order (b).
The applicants’ proposed notice of appeal seeks:
(a)the setting aside of the order of 27 March 2009 that judgment be entered for the defendant and in lieu an order that judgment be entered for the applicants; and
(b)the setting aside of the impugned orders for costs and in lieu an order that the defendant pay the applicants’ costs, or alternatively that the applicants pay the defendant’s costs on a party/party basis on Scale D.
In respect of the 27 March 2009 judgment, the grounds allege that in arriving at each of the conclusions stated above, the judge made errors of law and fact. It is unnecessary to set out the grounds. They are extensive and in essence allege errors in relation to matters of fact, whether because a finding was not open or reasonably open on the evidence, or that a contrary finding should have been made.
In respect of the 4 August 2009 orders, the grounds allege that the findings were not open or reasonably open on the evidence, in that her Honour did not take a thorough approach to the application of the principles in Hazeldene’s Chicken Farm Pty Ltd v Victorian Work Cover Authority (No. 2),[1] and in not following Nolan v Nolan (No. 2)[2] and Stipanov v Mier,[3] and in finding that it was not reasonable for the applicants to have rejected the defendant’s offers of compromise.
[1][2005] VSCA 298.
[2][2003] VSC 136.
[3][2006] VSC 424.
The first matter for determination is whether time to appeal from the 27 March 2009 orders should be extended. Whether time is to be extended depends upon the justice of the situation as between the parties considered in light of the relevant circumstances. Such circumstances can, and do in this case, include the length of and reasons for the delay, whether there is an arguable case and prejudice to the respondent.
The delay to 18 September 2009 was approximately five months. The delay is sought to be explained on the basis that following conclusion of the trial, the individual applicant lived in India (and also South Africa it seems). He deposed that he had no business or income in Australia and supported himself from his business undertakings in India. He deposed that living in India made it difficult for him to understand the judgments of 27 March 2009 and 4 August 2009 and to be able to properly determine whether or not to proceed with an appeal. He deposed that he had not been financially able to engage solicitors or counsel to advise on appeal. As to that, it is to be noted that the individual applicant and his wife have a residential property in Melbourne. While stating that the property has “a small mortgage”, he did not provide information as to the value of the property and the amount owing. He deposed that he was not aware that the appeal time applied from the date of judgment, rather than the finalisation of costs. As a result of the ruling on costs, he instructed his solicitor to assist in preparing a notice of appeal. He also deposed that he needed to read the transcript which was in a format that could not be emailed to him. So he could not read the transcript to see the evidence until he returned to Australia for this purpose, and which he did on 13 September 2009. He then prepared the notice of appeal with his solicitor and returned to India. He deposed further that, while in India, it was not possible to understand or appreciate the reasons for the judgments which made it difficult to properly consider and assess whether he had proper grounds to appeal. It was therefore necessary to consult the solicitor who had represented the applicants for his advice and assistance.
We have this morning been provided with an affidavit of that solicitor sworn as long ago as 20 October 2009, but which by inadvertence was omitted from the papers provided to us. Pertinently in that affidavit the solicitor deposes that following the delivery of judgment in March 2009, and in respect of costs in August 2009, his instructions and retainer were limited to advising the applicants and corresponding with the respondent’s solicitors on the issue of costs of the proceedings. He further deposed that whilst he sought instructions from the applicants in this regard, he did not receive instructions from them to file an appeal against the orders made on 27 March 2009 and 4 August 2009. That last evidence is clearly referring to having sought instructions from the applicants in relation to the filing of an appeal.
The solicitor goes no further and in particular does not depose as to the time of seeking instructions as to appeal or as to the content of advice to the applicants in that regard, and in particular as to advice as to the time for making an appeal. Nor, it might be noted, does the individual applicant by further affidavit give content to that rather open-ended evidence of the solicitor.
A difficulty with the explanation is that throughout the applicants’ solicitor has been and remained on the record. A further difficulty is the omission of detailed financial information that could enable a proper consideration of the asserted financial constraint of obtaining advice and acting earlier. Regarding the matter generally, it would have been open to the applicants to seek advice and to their solicitor to have advised the applicants as to an appeal. And, as I have just said, it was also open for the applicants to have condescended to greater particularity as to just what advice was sought and provided. It must also have been open for a notice of appeal to have been prepared and filed within time, even if only to hold the situation.
The individual applicant deposed that he originally instructed the solicitor to assist him in drawing the notice of appeal, although that position seemed to change on his evidence. We now have the further evidence from the solicitor but that, as mentioned, is insufficient as to actually what advice was given as to an appeal and when.
In truth, in my view, the delay is not properly or adequately explained. What is evident is that the applicants deliberately delayed on the matter of appeal. In doing so, they took a risk.
The next matter is that of merits, and here the applicants are faced with findings of fact of the trial judge arrived at in a carefully reasoned judgment and with the benefit of having seen the witnesses. It is sufficient to say that the prospect of overturning these findings seems remote and not at all likely.
Then there is the question of prejudice to the defendant constituted by its right to enforce the judgment for costs and to have finality in the litigation.
Of course, the interest of the applicants is not to be overlooked. They are aggrieved and assert an arguable case. I have borne this in mind. Nevertheless the question remains, where does the justice of the situation lie?
In my view, considering all of the circumstances it is appropriate and just that the application to extend time to appeal be refused.
That leaves the issues concerning costs. Here the applicants submit that the judge failed to consider their written submissions on costs and failed to analyse each offer and correctly consider the guidelines referred to in Hazeldene’s case.
Her Honour’s reasons disclose that prior to trial the defendant made three offers:
(a)By letter on 3 October 2006, that the plaintiffs discontinue and that each party bear its own costs.
(b)By offer of compromise on 18 March 2008, that the proceeding be dismissed with no orders as to costs and that each party bear its own costs. This offer was accepted by the first and second applicants who thus withdrew from the proceeding.
(c)By letter to the remaining applicants on 1 October 2008, by a payment by the defendant of $10,000 inclusive of costs and subject to execution of a deed of release.
It is apparent from the reasons that the impugned orders for costs reflected the judge’s conclusion that the refusal of the second and third offers was unreasonable and that the order for indemnity costs was considered a higher order than that for solicitor and own client. It is to be noted that the judge did not consider the effect of the inclusion in the order of the word “own” and the distinction (such as may now exist) between costs as between solicitor/client and costs as between solicitor and own client.[4] As no point was taken as to this by counsel for the applicants and as the order seems to have been treated as being equivalent to an order for solicitor/client costs, it is unnecessary to say anything further about that matter.
[4]As to the distinction see Re National Safety Council of Australia, Victorian Division (In liq.) (No 2) [1992] 1 VR 485, and Law of Costs, Dal Pont, Butterworths, 2nd ed, para 16.24.
Therefore, putting that issue aside, the question is whether in the circumstances there should be leave to appeal. I put it that way without overlooking the delay from 4 August 2009 until the filing of the summons. While this delay was much less than that from the judgment on 27 March 2009, it yet also is not satisfactorily explained. Nevertheless it is convenient to consider the costs matter from the point of view of the application for leave to appeal. For whether or not leave would be granted is relevant in considering whether to extend time.
In my view, approaching the matter as indicated in Velissaris v. Fitzgerald[5] and Spotless Group Ltd v Premier Building and Consulting Pty Ltd,[6] leave to appeal should be refused.
[5][2008] VSCA 152.
[6][2008] VSCA 115.
To obtain leave to appeal the applicants must establish that the order is wrong or attended by sufficient doubt to warrant the judgment being reconsidered on appeal and that the applicants would suffer substantial injustice if the order stands. In this consideration, the decision on costs being discretionary, the applicants must show that the discretion miscarried by reason of the judge having acted on a wrong principle, taken an irrelevant matter into account, having made a mistake as to the facts, or having failed to take a relevant matter into account.
The discretion on costs was to be exercised in light of all the relevant circumstances. See Luxmore Pty Ltd v. Hydedale Pty Ltd.[7] This, in my view, the judge did. It was for the judge to determine how and with what effect the relevant matters were to be assessed. I am not persuaded that she fell into error of the type mentioned. Instead, in the circumstances the impugned orders were plainly such that were open to be made.
[7](2008) 20 VR 481.
In these circumstances it is not necessary to give separate consideration to the applications for an extension of time or a stay of execution. These applications must also fail.
For these reasons, in my view, the applications must fail and the summons should be dismissed.
BONGIORNO JA:
I agree with Hansen J. I would add only that the applicant has failed at the first hurdle in this application in that there was no satisfactory explanation for his not having complied with the time limit set out in the statute. Insofar as he did seek to explain that situation, his explanation was exiguous and appeared to raise more questions than it answered.
The second matter in which he also failed at the first hurdle was in relation to a stay. The first principle in the granting of a stay in this Court is that there must be exceptional circumstances. There appear to be no circumstances proffered at all as to why a stay should be granted in this case.
Accordingly I also would dismiss the applications.
Order
The order of the court will be that the applications are dismissed with costs including any reserved costs.
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