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Cooper v Sztainbok

Cooper v Sztainbok

Case [2009] VSCA 73 3 April 2009

Limitation Periods

Appeal

Prejudice to Respondent

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3713 of 2009

GLEN COOPER AND LISA COOPER
	First and Second Applicant
v
OLGA SZTAINBOK	Respondent

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APPLICATION ON SUMMONS

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JUDGES:	KELLAM AND DODDS-STREETON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	03 April 2009
DATE OF JUDGMENT:	03 April 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 73`	`

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APPLICATION – Leave to file and serve notice of appeal out of time – Explanation for delay – Prospects of success – Prejudice to respondent.

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APPEARANCES:	Counsel	Solicitors
For the First and Second Applicants	Mr P W Lithgow	Hill Legal
For the Respondent	Mr M W Morrison	Marshall & Dent

KELLAM JA:

I agree with the reasons given by Dodds-Streeton JA.

DODDS-STREETON JA:

The applicants, Glen Cooper and Lisa Cooper, seek an order extending the time in which to file and serve a notice of appeal from the judgment of a judge of the Trial Division given on 18 December 2008.

His Honour ordered that there be judgment for the respondent, Olga Sztainbok, the plaintiff below. The respondent had applied for specific enforcement of the written terms of settlement (‘Head of Agreement’) dated 26 July 2007 entered between the respondents and the applicants at mediation to compromise the respondent’s proceeding.

In particular, his Honour ordered:

1.   There be judgment for the plaintiff pursuant to the Heads of Agreement made between the plaintiff and the first and second defendants and dated 26 July 2007 and declares that the compromise of the proceeding constituted by the said Heads of Agreement be specifically performed.
2.   By noon on Monday 22 December 2008 the first and second defendants deliver to the solicitors for the plaintiff, duly signed by them, the Application for Certification (Form 1) under the Subdivision Act 1998, which Application for Certification was provided to the first and second defendants by the plaintiff’s solicitors in October 2007 and a copy of which is Exhibit MML6 to the affidavit of Margaret Mary Leech sworn 18 April 2008.
3.   The first and second defendants, within seven days of the solicitors for the plaintiff giving them form signing an Application for Approval of Plan of Subdivision (being the Plan of Subdivision in Exhibit BM4 to the affidavit of Brian Moxham sworn 16 May 2008), sign and deliver to the solicitors for the plaintiff the said Application for Approval of Plan of Subdivision.
4.   The first and second defendants, within seven days of the solicitors for the plaintiff giving them for signing a Transfer of Land necessary for lodging with Land Victoria to implement the change to the title boundary agreed to in the said Heads of Agreement and depicted in the said Plan of Subdivision, sign and deliver the said Transfer of Land to the solicitors for the plaintiff.

The Draft Notice of Appeal states:

1. The learned trial Judge erred in concluding that the Plan of Subdivision in Exhibit BM4 to the affidavit of Brian Moxham sworn 16 May 2008 accorded with or accurately implemented…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cooper v Sztainbok

Details

AGLC: Cooper v Sztainbok [2009] VSCA 73
Case: [2009] VSCA 73
Decision Date: 3 April 2009

CaseChat Overview and Summary

In Cooper v Sztainbok, the matter before the court involved an application for leave to file and serve a notice of appeal outside the statutory time limit. The applicant sought to appeal a decision made by a lower court, which had ruled in favour of the respondent. The primary concern was whether the applicant could be granted permission to proceed with the appeal despite the delay in filing the notice of appeal. The court needed to consider the adequacy of the explanation provided for the delay, the prospects of success of the appeal, and whether the respondent would be prejudiced if the application were to be allowed.

The legal issues before the court included whether the applicant's explanation for the delay in filing the notice of appeal was satisfactory, whether the applicant had a reasonable prospect of success on the appeal, and whether allowing the appeal would cause significant prejudice to the respondent. The court had to weigh these factors in determining whether the application for leave to appeal out of time should be granted. The applicant argued that the delay was due to a series of misunderstandings and administrative errors, and that there was a viable case on appeal. The respondent contended that the delay was inexcusable, and that allowing the appeal would result in significant prejudice, including the potential need to re-litigate issues that had already been decided.

The court considered the explanation for the delay provided by the applicant, noting that while some of the reasons were understandable, others were not sufficiently compelling. The court also assessed the prospects of success of the appeal, finding that there were some arguable grounds for the appeal but that they were not particularly strong. Furthermore, the court examined the potential prejudice to the respondent if the appeal were to proceed, concluding that there would be significant prejudice due to the delay in bringing the appeal and the potential need to re-litigate matters. Given these considerations, the court decided that the application for leave to appeal out of time should be dismissed. The court found that the explanation for the delay was not entirely satisfactory, the prospects of success on the appeal were not strong, and the prejudice to the respondent outweighed the potential benefits of allowing the appeal.

Orders