Dimitriou v Huybers (No 2) - [2018] NSWCA 62

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Dimitriou v Huybers (No 2) [2018] NSWCA 62
Hearing dates: 26 March 2018
Decision date: 26 March 2018
Before: Basten JA; Macfarlan JA; Leeming JA
Decision:
(1)   The Court:

(a)   refuses the application to tender an additional affidavit and accompanying exhibit.
(b)   dismisses the application to vacate the hearing.

Following further argument:

(2)   The amended notice of motion filed 24 November 2017 is dismissed.
(3)   Applicants to pay the costs of the respondents to be assessed on the ordinary basis.
Catchwords:
CIVIL PROCEDURE – application to vacate hearing date – proposal to tender volume of documents not before primary judge – no opportunity to address the material – no evidence explaining why production so late
CIVIL PROCEDURE – dismissal of appeal for non-compliance with directions – application to review decision of single judge – inadequacy of explanation for non-compliance – judge not satisfied as to responsibility of lawyers for non-compliance – judge satisfied appeal had no realistic prospects of success
Category: Principal judgment
Parties: George Dimitriou (First Applicant)
Wyse & Young International Pty Ltd (Second Applicant)
Wyse Accounting Pty Ltd (Third Applicant)
Susan Elizabeth Huybers (First Respondent)
Pineview Property Holdings Pty Ltd (Second Respondent)
Salvatore Russo t/as Russo and Partners (Third Respondent)
Representation:
Counsel:
Mr G Dimitriou for all applicants
Mr D Allen (Respondents)
Solicitors:
Mr G Dimitriou for all applicants
Kekatos Lawyers (Respondent)

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

Court or tribunal:

Court of appeal

Citation:

[2017] NSWCA 252

Date of Decision:

10 October 2017

Before:

Meagher JA

File Number(s):

2016/227999

Judgment ON Application to vacate hearing

THE COURT: Mr Dimitriou seeks to vacate the hearing of this motion on the basis that he wishes to tender a folder of material upon which the applicants seek to rely if the appeal is reinstated. First, it is not appropriate to admit, on an application to review an order of a single judge, extensive material that was not before him. Secondly, the application is far too late. Before letting it in, there would need to be consideration of the reason why it was not provided earlier, and there might need to be cross-examination of the applicant on that issue.
Further, the large bundle of material no doubt goes to the merit of the appeal. If there is a basis for the late presentation of this material, and the application for review is dismissed, it can be proffered in support of any further application to extend time to appeal, were such an application to be made.
The Court refuses the application to tender the additional affidavit and the accompanying exhibit and dismisses the application to vacate the hearing.

JUDGMENT on review application

THE COURT: On 30 June 2016 White J, sitting in the Equity Division, gave judgment against the present applicants in favour of the first and second respondents, Susan Elizabeth Huybers and Pineview Property Holdings Pty Ltd. The applicants, George Dimitriou and two companies associated with him, gave…

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.

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Details

Case: [2018] NSWCA 62
Decision Date: 26 March 2018

CaseChat Overview and Summary

The applicants, Dimitriou and others, sought to tender a volume of documents not previously before the primary judge and to vacate the scheduled hearing date. The respondents, Huybers and others, opposed these applications. The matter came before the Court of Appeal of New South Wales, constituted by Basten, Macfarlan and Leeming JJA.

The primary legal issues before the Court were whether to permit the late tender of additional evidence and whether to grant an adjournment of the hearing. These applications were made in circumstances where the applicants had previously failed to comply with court directions, leading to the dismissal of their appeal by a single judge. The Court was required to consider the adequacy of the explanation for the applicants' non-compliance and the prospects of success of the appeal itself.

The Court refused the application to tender the additional affidavit and exhibit, noting the absence of any evidence explaining the late production of this material and the lack of opportunity for the respondents to address it. Consequently, the application to vacate the hearing was also dismissed. The Court found that the explanation for the applicants' non-compliance with previous directions was inadequate and that the single judge had been satisfied that the appeal had no realistic prospects of success. The amended notice of motion was therefore dismissed, with the applicants ordered to pay the respondents' costs.

Orders

Orders of the court

(1) The Court:

(a) refuses the application to tender an additional affidavit and accompanying exhibit.

(b) dismisses the application to vacate the hearing.

Following further argument:

(2) The amended notice of motion filed 24 November 2017 is dismissed.

(3) Applicants to pay the costs of the respondents to be assessed on the ordinary basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Dimitriou v Huybers (No 2) [2018] NSWCA 62
Hearing dates:	26 March 2018
Decision date:	26 March 2018
Before:	Basten JA; Macfarlan JA; Leeming JA
Decision:	(1) The Court: (a) refuses the application to tender an additional affidavit and accompanying exhibit. (b) dismisses the application to vacate the hearing. Following further argument: (2) The amended notice of motion filed 24 November 2017 is dismissed. (3) Applicants to pay the costs of the respondents to be assessed on the ordinary basis.
Catchwords:	CIVIL PROCEDURE – application to vacate hearing date – proposal to tender volume of documents not before primary judge – no opportunity to address the material – no evidence explaining why production so late CIVIL PROCEDURE – dismissal of appeal for non-compliance with directions – application to review decision of single judge – inadequacy of explanation for non-compliance – judge not satisfied as to responsibility of lawyers for non-compliance – judge satisfied appeal had no realistic prospects of success
Category:	Principal judgment
Parties:	George Dimitriou (First Applicant) Wyse & Young International Pty Ltd (Second Applicant) Wyse Accounting Pty Ltd (Third Applicant) Susan Elizabeth Huybers (First Respondent) Pineview Property Holdings Pty Ltd (Second Respondent) Salvatore Russo t/as Russo and Partners (Third Respondent)
Representation:	Counsel: Mr G Dimitriou for all applicants Mr D Allen (Respondents) Solicitors: Mr G Dimitriou for all applicants Kekatos Lawyers (Respondent)
File Number(s):	2016/227999
Decision under review	Court or tribunal: Court of appeal Citation: [2017] NSWCA 252 Date of Decision: 10 October 2017 Before: Meagher JA File Number(s): 2016/227999