De Maria v Phipps

[1999] QCA 39

99.39

COURT OF APPEAL

PINCUS JA THOMAS JA SHEPHERDSON J

Appeal No 7922 of 1998

CLAUDIA DE MARIA	(Plaintiff)	Respondent
v.

GREGORY JOHN PHIPPS (Defendant) Appellant

BRISBANE
..DATE 24/02/99
240299 D.1 T6/PAF23 M/T COA28/99
PINCUS JA: There is before the Court a notice of motion
which asks for two sorts of relief: one, a stay pending
appeal of execution of a judgment of Chesterman J. given on
29 July 1998, and the other, an enlargement of time for
serving a notice of appeal.
As for the enlargement, it appears to me that that should be
granted. There is only a small delay involved. An
explanation has been given for it which is not entirely
satisfactory, but it does not seem to me that it would be
unjust to grant the relief sought in paragraph 2 of the
notice of motion. The real difficulty is with respect to
the relief sought in paragraph (a), which is that there be a
stay of Chesterman J's order giving summary judgment.

The order which was made by His Honour on 29 July was that the plaintiff recover against the defendant a sum of $45,000 and leave to defend was given with respect to the balance of the plaintiff's claim. The $45,000 was said in the plaintiff's material to have been lent to the defendant; the judge, it appears, gave judgment against the defendant under the impression that the defendant, now applicant, had conceded that the $45,000 was due.

Mr O'Sullivan has produced material today which is intended
primarily to show that a stay should be granted, and it
includes discussion of the circumstances in which the
$45,000 came to be due. The material consists of an
affidavit of Gregory John Phipps, the applicant, sworn on 23
February 1999; an affidavit of Brendon Anthony Creighton and
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Genevieve Rice sworn on 22 February 1999; and an affidavit
of Patrick Brendan Cain sworn on 23 February 1999.
Although, as Mr O'Sullivan candidly admits, the conduct of
the proceedings on his side has been less than ideal, in my
opinion the material should be received; that is, the three
affidavits should be received and acted upon. I would not
have been of that view but for the fact that, as Mr
O'Sullivan pointed out, on 23 October 1998 a statement of
the applicant was filed in this Court, and also a statement
of a Mr Kolifrath which is referred to in the statement of
the applicant, and it is admitted by Mr Sheaffe, who appears
for the respondent today, that that material was received by
his side last week. It therefore appears that the
respondent had some notice, sufficient to enable them to
respond, of the general nature of the attack which is made
today upon the judgment of Mr Justice Chesterman.

In the affidavit of Mr Phipps, leave to use which has been given today, this comment is made, on the first page in paragraph 3, about the $45,000. The deponent says:

"The claim, including the $45,000 claim for which
judgment has been given, is in fact inextricably linked
to the respective right, obligations and entitlements
of each of the parties in respect of the property

development".

That is plainly very vague. The nature of the linkage does
not appear and one might have expected that the agreement
governing repayment of the $45,000 would have been sworn to
more explicitly.
240299 D.1 T6/PAF23 M/T COA28/99
There is reference in paragraph 9 of that affidavit to what
the side agreement was and that is to the effect that the
$45,000 arrangement was subject to an agreement being
signed. The only specific information which is available
before the Court as to the nature of the side agreement is
in the statement of Mr Kolifrath, which was apparently
forwarded to the respondent's solicitors last week and which
is part of the material relied upon by Mr O'Sullivan in
support of the submission that the respondent should not be
surprised by what has been sworn to today.
The statement of Mr Kolifrath refers to the $45,000 as being
subject to an agreement to repay and it goes on to discuss
an agreement with respect to shares in a company spoken of
as CDM. The statement next talks about what the presiding
judge said and adds that the rest of that paragraph, that
is, apparently, a paragraph in some minutes, has not been
conformed to because money was loaned to a company rather

than shares being purchased.

As has been pointed out during the hearing, the notice of
appeal does not give any indication as to what specific
point is sought to be taken in support of the submission
proposed to be made at the hearing of the appeal that Mr
Justice Chesterman was in error; the only specific
information contained in the material is that to which I
have referred. It is, of course, entirely unsatisfactory
that one has to refer to that material, which is not even
sworn to, to ascertain what it is that the applicant is
complaining about - that is, what is the side agreement the
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presence of which made it wrong for Mr Justice Chesterman to
grant judgment in favour of the respondent.
It is my opinion, however, that giving the fullest weight
one can, and perhaps fuller weight than one should, to the
statement of Mr Kolifrath, it does not appear that there is
anything sufficiently strong before the Court to indicate
that there was an error made by Chesterman J. in accepting
what he thought was a concession by the applicant in respect

of the $45,000 being due.

I do not say that the appeal is hopeless. It may be that
when this matter is got together there will be some
explanation of this supposed side agreement, or additional
agreement, which will indicate that Mr Justice Chesterman
was wrong. But the applicant has, as it seems to me, had
ample opportunity to come forward with a clear explanation
of it today and has not done so, subject to the statement of
Mr Kolifrath to which I have referred, which does not seem

to me to be sufficiently strong.

The possibility, of course, is that the Federal Court, in
bankruptcy proceedings which have been instituted, will go
into the matter further; but I can only give my opinion on
what is before us today, and my opinion is that there is not
enough shown to warrant the grant of a stay. I would,
therefore, dispose of the matter by granting the extension
of time sought in the notice of motion in paragraph 2 in the
terms set out in paragraph 2 by refusing of the relief
sought in paragraph 1 and by making the costs of today's
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proceedings the costs of Claudia de Maria in the appeal.
Those are the orders I would make.

THOMAS JA: The notice of appeal was served out of time. There is now a belated application for extension of time and for a stay. The notice of appeal wears the aspect of a holding appeal, the one ground being:

"That the defendant was denied natural justice and that

the judgment is wrong in law and in fact".

I have some reservation about whether the material which has
now been placed before the Court shows any sufficient
prospect of success to justify extending time, although the
further material filed today attempts to do so in a number
of ways. On behalf of the applicant there has never been
any articulation of what he claims the agreement or
agreements or rearrangements that were made in November 1997
actually were.
With some reservations then, I will join in the proposed

order for extension of time for commencement of the appeal.

I agree entirely with what Mr Justice Pincus has said in

relation to refusing this rather tardy application for a

stay. Accordingly, I agree with the orders proposed.

SHEPHERDSON J: I agree with the orders proposed by the
learned presiding judge and generally with what he says.
His Honour has referred to the statement from Kolifrath
concerning the agreement but, so that that agreement can be
put in context, I think it is necessary to bear in mind that
in her affidavit supporting the application for summary
judgment the present respondent produced as an exhibit CDM6,
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being a true copy of minutes of a meeting of directors of a
company, OC Developments Pty Ltd, held on 10 November 1997
at which she swore the persons present were the present
applicant, Phipps, J. Kolifrath, M. Kolifrath and herself.

She referred to the last resolution describing it as:

"Whereby it is recorded that those present agreed that
the defendant then owed me forty-five thousand dollars
($45,000). I say this sum is part of the moneys
claimed in this action from the defendant. No

agreement was drawn up as contemplated in the minutes".

It is true that the minutes show:

"We all agreed that Greg owed Claudia $45,000 to be
repaid as per agreement to be drawn up by MK...".

It is also important to note, I think, that in the application for summary judgment the present applicant represented himself. Subject to those comments, I agree with the orders proposed by the learned presiding judge.

PINCUS J: The orders will be then that a stay of execution is refused; the time for serving a notice of appeal is enlarged in the terms set out in paragraph 2 of the notice of motion; and the costs of today's application will be the costs of Claude de Maria in the appeal.

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