Dimitriou v Huybers - [2017] NSWCA 252

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Dimitriou v Huybers [2017] NSWCA 252
Hearing dates: 25 September 2017
Decision date: 10 October 2017
Before: Meagher JA
Decision:
1. Dismiss the first, second and third appellants’ application to extend the time for compliance with order 1 made by Beazley P on 5 June 2017.
2. Otherwise dismiss the applications for relief in paragraphs 4, 5, 6, 7 and 8 of the Amended Notice of Motion filed on 25 September 2017.
3. The first, second and third appellants pay the first, second and third respondents’ costs of that Amended Notice of Motion.

Catchwords: PRACTICE AND PROCEDURE – where appeal dismissed pursuant to self-executing order for failure to comply with procedural direction – where application to extend time for compliance after expiry of time – whether satisfactory explanation for failure to comply with direction – whether appeal devoid of merit – no issue of principle
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 1.12
Cases Cited: Devries v Australian National Railways Commission (1993) 177 CLR 472
FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
Singh v Singh [2017] NSWCA 15
Stollznow v Calvert [1980] 2 NSWLR 749
Category: Procedural and other rulings
Parties: George Dimitriou (First Appellant)
Wyse & Young International Pty Ltd (Second Appellant)
Wyse Accounting Pty Ltd (Third Appellant)
Susan Elizabeth Huybers (First Respondent)
Pineview Property Holdings Pty Ltd (Second Respondent)
Salvatore Russo (Third Respondent)
Representation:
Counsel:
D Allen (First and Second Respondents)
Solicitors:
Foleys Lawyers (Appellants)
Kekatos Lawyers (First and Second Respondents)
Russo and Partners (Third Respondent)

File Number(s): 2016/227999
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Equity division

Citation:

[2016] NSWSC 904

Date of Decision:

30 June 2016

Before:

White J

File Number(s):

2013/301976

Judgment

MEAGHER JA:

Overview

On 31 October 2016, the applicants (Mr Dimitriou, WYI and WAC) filed an appeal against judgments of White J (as his Honour then was) in favour of the first respondent (Ms Huybers) and second respondent (Pineview), and against his Honour’s refusal to order that the third respondent (Mr Russo) pay the Dimitriou parties’ costs of defending his unsuccessful cross-claim. Their appeal was dismissed on 3 July 2017 pursuant to self-executing orders made and entered by Beazley P on 5 June 2017. Those orders included:

1.   Vary orders 2 and 3 made on 10 May 2017 and direct that the appellants file and serve:
(a)   any further amended notice of appeal; and/or
(b)   written submissions in support of their appeal
on or before 5 pm on 3 July 2017.
…
3.   Subject to order 6, order that in the event that the appellants do not comply with order 1 above, that the proceedings be dismissed with the appellants to pay the respondent’s costs.
…
6.   Grant the appellants liberty to apply in respect of order 3, such liberty to be exercised on 2 business days’ notice…

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 Dimitriou v Huybers

Details

AGLC: Dimitriou v Huybers [2017] NSWCA 252
Case: [2017] NSWCA 252
Decision Date: 10 October 2017

CaseChat Overview and Summary

The appeal concerned an application by the first, second, and third appellants to extend time for compliance with a procedural direction previously made by Beazley P on 5 June 2017. The original direction was a self-executing order, meaning that failure to comply would result in the dismissal of the appeal. The application to extend time was made after the expiry of the original compliance period. The Court of Appeal of New South Wales was required to determine whether a satisfactory explanation had been provided for the failure to comply with the procedural direction and whether the appeal itself was devoid of merit, noting that no issue of principle arose.

Meagher JA considered the appellants' explanation for their non-compliance and found it to be unsatisfactory. The court applied the principles governing applications for extensions of time, particularly in circumstances where a self-executing order has taken effect. The court's reasoning focused on the need for a compelling reason to grant an extension after the expiry of time and the absence of any substantial merit in the underlying appeal.

The court ordered that the application by the first, second, and third appellants to extend time for compliance with the order of 5 June 2017 be dismissed. Further, the court dismissed the remaining applications for relief sought in the Amended Notice of Motion filed on 25 September 2017. Consequently, the first, second, and third appellants were ordered to pay the costs of the first, second, and third respondents in relation to that Amended Notice of Motion.

Orders

Orders of the court

1. Dismiss the first, second and third appellants’ application to extend the time for compliance with order 1 made by Beazley P on 5 June 2017.

2. Otherwise dismiss the applications for relief in paragraphs 4, 5, 6, 7 and 8 of the Amended Notice of Motion filed on 25 September 2017.

3. The first, second and third appellants pay the first, second and third respondents’ costs of that Amended Notice of Motion.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Dimitriou v Huybers [2017] NSWCA 252
Hearing dates:	25 September 2017
Decision date:	10 October 2017
Before:	Meagher JA
Decision:	1. Dismiss the first, second and third appellants’ application to extend the time for compliance with order 1 made by Beazley P on 5 June 2017. 2. Otherwise dismiss the applications for relief in paragraphs 4, 5, 6, 7 and 8 of the Amended Notice of Motion filed on 25 September 2017. 3. The first, second and third appellants pay the first, second and third respondents’ costs of that Amended Notice of Motion.
Catchwords:	PRACTICE AND PROCEDURE – where appeal dismissed pursuant to self-executing order for failure to comply with procedural direction – where application to extend time for compliance after expiry of time – whether satisfactory explanation for failure to comply with direction – whether appeal devoid of merit – no issue of principle
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 1.12
Cases Cited:	Devries v Australian National Railways Commission (1993) 177 CLR 472 FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 Singh v Singh [2017] NSWCA 15 Stollznow v Calvert [1980] 2 NSWLR 749
Category:	Procedural and other rulings
Parties:	George Dimitriou (First Appellant) Wyse & Young International Pty Ltd (Second Appellant) Wyse Accounting Pty Ltd (Third Appellant) Susan Elizabeth Huybers (First Respondent) Pineview Property Holdings Pty Ltd (Second Respondent) Salvatore Russo (Third Respondent)
Representation:	Counsel: D Allen (First and Second Respondents) Solicitors: Foleys Lawyers (Appellants) Kekatos Lawyers (First and Second Respondents) Russo and Partners (Third Respondent)
File Number(s):	2016/227999
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity division Citation: [2016] NSWSC 904 Date of Decision: 30 June 2016 Before: White J File Number(s): 2013/301976