Dielos v Morgan - [2006] SASC 297

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
DIELOS v MORGAN & ANOR
[2006] SASC 297
Judgment of The Honourable Justice Gray
28 September 2006
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
PROCEDURE - COSTS - APPEALS AS TO COSTS
Magistrate entered judgment in favour of the respondents for costs incurred by the appellant for professional charges and disbursements - Appeal against the decision of the magistrate to enter summary judgment against the appellant - appeal lodged out of time - application for extension of time to lodge the appeal - consideration of matters to be considered on application to extend time following a decision of a magistrate - application for extension of time refused - appeal dismissed.
Police v Warren [2000] SASC 285; Hughes v National Trustees Executors & Agency Co of Australasia [1978] VR 257; Ratnam v Cumarasamy (1964) 3 All ER 933; Hall v The Nominal Defendant (1966) 117 CLR 423; R v Foster (1966) 187 LSJS 135; R v Trotter (1979) 22 SASR 64; Jackamarra v Krakouer (1998) 195 CLR 516; Gikas v Police (1999) 202 LSJS 301, considered.

DIELOS v MORGAN & ANOR
[2006] SASC 297
GRAY J:

This is an appeal against the decision of a magistrate to enter summary judgment in a civil proceeding.
Judgment was entered on 13 December 2005. The appeal was lodged on 28 July 2006, almost seven months out of time. On the hearing of the appeal, an oral application was made for an order extending time to lodge the appeal. That application has been opposed.
Before discussing the application to extend time to appeal, it is necessary to set out the background facts.
Background Facts
In May 2004, Dimitrios Dielos, the appellant, instructed Morgan Ward Solicitors to act for him in regard to his matrimonial affairs and in particular, to attend in the Federal Magistrates Court. On 24 June 2004, Mr Dielos was provided with a Bill of Costs claiming an amount of $5,163.38 with respect to professional charges and disbursements. On 14 July 2004, a further bill was sent for $1,597.73 in respect of further professional attendances and disbursements. The total claim for the two accounts was in the amount of $6,761.11.
Mr Dielos did not seek further particulars or challenge either account. No complaint was made about the quantum of charges. No application for taxation of costs was made. No payment was made.
Mr Dielos claims that at the time, he was in financial difficulty and on 16 June 2004, he accepts that he signed an irrevocable authority authorising a third party to pay $3,000 in respect of the then anticipated costs and disbursements of his solicitors from the proceeds of the sale of property in which Mr Dielos had an interest. On 25 June 2004, Mr Dielos signed a further irrevocable authority to the same third party but on this occasion in the amount of $6,000. In the event,…

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 Dielos v Morgan

Details

AGLC: Dielos v Morgan [2006] SASC 297
Case: [2006] SASC 297
Decision Date: 28 September 2006

CaseChat Overview and Summary

In the case of Dielos v Morgan, the appellant, Dimitrios Dielos, sought to appeal the decision of a magistrate who had entered summary judgment in favour of the respondents, Morgan Ward Solicitors, for costs incurred by the appellant. The appeal was lodged out of time, necessitating an application for an extension of time to lodge the appeal. The South Australian Court of Appeal considered the application for an extension of time and ultimately dismissed the appeal. The central issue before the Court was whether there were sufficient grounds to warrant an extension of time for the appellant's late appeal against the magistrate's decision. The Court also considered the merits of the defence put forward by the appellant, which primarily centred on allegations of overcharging and undue influence by the solicitors.

The Court found that the appellant had failed to provide a satisfactory explanation for the delay in lodging the appeal, and that the delay was substantial. The appellant's defence, which included claims of overcharging and undue influence, was considered to lack merit as the appellant had not provided any concrete evidence or particulars to support these allegations. Furthermore, the Court noted that the appellant had signed irrevocable authorities to pay the costs in question, yet no payment was made. The Court concluded that the justice of the case did not call for an extension of time. As a result, the application for an extension of time was refused, and the appeal was dismissed. The Court did not make any orders regarding the substantive matter of the costs claim.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Before discussing the application to extend time to appeal, it is necessary to set out the background facts. Background Facts In May 2004, Dimitrios Dielos, the appellant, instructed Morgan Ward Solicitors to act for him in regard to his matrimonial affairs and in particular, to attend in the Federal Magistrates Court. On 24 June 2004, Mr Dielos was provided with a Bill of Costs claiming an amount of $5,163.38 with respect to professional charges and disbursements. On 14 July 2004, a further bill was sent for $1,597.73 in respect of further professional attendances and disbursements. The total claim for the two accounts was in the amount of $6,761.11. Mr Dielos did not seek further particulars or challenge either account. No complaint was made about the quantum of charges. No application for taxation of costs was made. No payment was made. Mr Dielos claims that at the time, he was in financial difficulty and on 16 June 2004, he accepts that he signed an irrevocable authority authorising a third party to pay $3,000 in respect of the then anticipated costs and disbursements of his solicitors from the proceeds of the sale of property in which Mr Dielos had an interest. On 25 June 2004, Mr Dielos signed a further irrevocable authority to the same third party but on this occasion in the amount of $6,000. In the event, no payments were made by the third party. On 14 April 2005, Morgan Ward issued proceedings claiming that Mr Dielos was indebted to them in the amount of $6,761.11, being a debt in respect to the provision of legal services. There were initial difficulties in effecting service but ultimately the proceedings were served on 21 October 2005. On 11 November 2005, Mr Dielos, by letter to the Magistrates Court, gave notice that he opposed the claim of Morgan Ward on the following grounds:That the plaintiff, David Glyn Morgan forced upon me through his position, to sign certain documents against my will. He has used his position to take advantage of my situation, in that he knew I was not in a positive financial position, yet he agreed to undertake my case with this understanding.He was told that when I was in a position to do so, I would pay him.I believe that he has inflated his costs because of the position I was in, re my Divorce proceedings, thus forcing me to sign certain documents.I am still not in a financial position to pay as at the moment I am receiving unemployment benefits.I ask that the Court dismiss this summons until I am in a better financial position to come to an agreement based on discussions held with The Plaintiff, Mr Morgan at the time of my Divorce Proceedings.I respectfully ask that this summons be withdrawn and that new discussions between myself and the plaintiff, Mr Morgan, take place. The matter was listed for directions on 29 November 2005. The magistrate who presided over the directions hearing advised Mr Dielos to take legal advice and to request a taxation of the costs if his concern related to the quantum of costs.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

No sufficient grounds for appeal have been disclosed to warrant an extension of time. There has been a failure to explain the delay with the frankness and candour expected having regard to the lengthy delay that has occurred. There does not appear to be merit in the suggested defence. Itemised bills indicating the nature of the work undertaken and the dates of attendances were provided in 2004. Only a bare assertion of overcharging has been advanced. The justice of the case does not call for an extension of time.Conclusion Having regard to all of the above considerations, the application for extension of time is refused. The appeal is dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.