Christopoulos v Levitt

[2010] NSWCA 362

New South Wales

Court of Appeal

CITATION:	Christopoulos v Levitt [2010] NSWCA 362
HEARING DATE(S):	8 December 2010
JUDGMENT DATE:	8 December 2010
JUDGMENT OF:	Hodgson JA at [1], [17]; Macfarlan JA at [16]
EX TEMPORE JUDGMENT DATE:	8 December 2010
DECISION:	Application be dismissed with costs. [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 – Application for leave to appeal – Whether chance of worthwhile result justified the grant of leave.
CATEGORY:	Procedural and other rulings
PARTIES:	Theodoros CHRISTOPOULOS (first applicant) Sotiria CHRISTOPOULOS (second applicant) Stewart LEVITT (respondent)
FILE NUMBER(S):	CA 2009/333465
COUNSEL:	[Theodoros CHRISTOPOULOS (in person)] S J BURCHETT (respondent)
SOLICITORS:	-- (applicants) Levitt Robinson Solicitors & Attorneys (respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 431/2009
LOWER COURT JUDICIAL OFFICER:	Garling DCJ
LOWER COURT DATE OF DECISION:	7 October 2009

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2009/333465
DC 431/2009

HODGSON JA
MACFARLAN JA

Wednesday, 8 DECEMBER 2010

Theodoros CHRISTOPOULOS and Anor v Stewart LEVITT

Judgment

1 HODGSON JA: This is an application for leave to appeal from a decision of Judge Garling, given on 7 October 2009, to dismiss proceedings brought by the applicants against a solicitor, who is the respondent to this application.

2 By that decision, the primary judge dismissed the proceedings, and one matter urged in support of the application for leave to appeal is that unless leave to appeal is granted, then the proceedings are, in effect, finally disposed of.

3 In helpful written submissions that have been submitted on behalf of the applicants, it is put that the case made out in the amended statement of claim was not one which had no chance of success, and that accordingly the primary judge was in error in summarily dismissing the proceedings.

4 There are two broad parts of the statement of claim. One part makes allegations concerning the conduct of the earlier proceedings which ultimately culminated in a decision of the Court of Appeal on 10 February 2003.

5 This part of the statement of claim is very difficult to understand, but it seems that what is being claimed that, but for negligence by the solicitor, the applicants would have achieved a better result in the proceedings, and in particular would have obtained relief against a solicitor, Mr Angelos, and perhaps further relief against the relevant shire council. In relation to that aspect of the claim, in my view the statement of claim does not suggest any intelligible case that would achieve any relief in that regard.

6 Further, to the extent that some of the claims relate to the conduct in relation to proceedings other than the Court of Appeal proceedings themselves, in my view it is clear that those claims would be statute barred. The possibility that unfavourable earlier results might have been overturned by the Court of Appeal is not, in my view, a reason for saying that damage had not occurred at an earlier time.

7 Insofar as the allegations relate to the conduct of the proceedings before the Court of Appeal, they do not indicate any basis on which any different decision should have been reached by the Court of Appeal, if something different had been done in relation to the conduct of the case before the Court of Appeal.

8 In my view, in relation to that aspect of the proceedings, there is no possibility of obtaining a different result in an appeal to the Court of Appeal from that reached by the primary judge, such as would justify the grant of leave to appeal.

9 The other aspect of the case concerns a claim that the solicitor, Mr Levitt, breached his duty in relation to the enforcement of a costs order made by the Court of Appeal against the Bebonis parties to the Court of Appeal proceedings.

10 The result of the Court of Appeal proceedings was a judgment for a certain amount against the Bebonis parties, plus an order for the payment of certain costs. Payment of the judgment was obtained. A bill of costs was prepared, this taking about five months. The assessment process in the Court took a further ten months, by which time it appears that Mr Bebonis was bankrupt.

11 At the time the costs order was made, Mr Bebonis, or perhaps the Bebonis parties, owned the property in which it appears there was some equity. That property was sold in about June of 2003, and it appears from a report of the trustee in bankruptcy that money then paid into a bank account was withdrawn, the withdrawal being made in about July of 2003.

12 It appears that, for the claim on this aspect to have any success, it would have to be on the basis that some time before about the middle of 2003, fulfilment of his duty by the solicitor would have put the applicants into a position where they could have enforced a costs order, or at least obtained some kind of injunctive relief on the basis that costs were being assessed and there was a threat of dissipation.

13 In my view, the chances of relief on that basis being established are slight in the extreme. And even if it were, the maximum damages that could be recovered would be whatever could be shown to have been available had those procedures been possible by that time which, on the figures in evidence, could not be more than about $80,000, far short of the $400,000 or more being claimed.

14 In my view, having regard to the slimness of the chance of any worthwhile relief being obtained, and indeed the slimness of the chance of proving a breach of duty causing such a loss, the Court should not now exercise its discretion to grant leave to appeal.

15 For those reasons, I would propose that this application be dismissed with costs.

16 MACFARLAN JA: I agree.

: The application is dismissed with costs.

oOo