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

1. 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.

2. 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.

3. 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

4. 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 notice of intention to appeal within time but failed to lodge a timely notice of appeal. White J also declined to make certain costs orders against the third respondent, Salvatore Russo, with respect to costs incurred in the trial. The appeal purported to challenge that decision, but no application was initially made for leave to appeal against that order. An application for leave has been included (irregularly) in the notice of motion before this Court.

5. On 31 October 2016, one month out of time, a notice of appeal was filed, although Mr Dimitriou claims it was an error in the registry which caused it to be noted as filed out of time. However, it was listed for directions on 8 February 2017. There followed a series of defaults by the applicants in relation to directions which resulted, on 5 June 2017, in the President making orders, including a guillotine order dismissing the proceedings if a further timetable were not complied with. The timetable was not complied with.

6. The relevant date for compliance was 3 July 2017. On 6 July the Registrar advised the applicants that the proceedings had been dismissed and a proposed directions hearing listed for 10 July 2017 had been vacated. On 11 August 2017 the applicants filed a notice of motion which, curiously, did not include an application for an order setting aside the judgment. Nevertheless, that was undoubtedly the intended effect of the orders sought, which included an order revoking the order made on 5 June 2017, and an order extending time for compliance with that order if it were not revoked.

7. That motion came before Meagher JA on 25 September 2017, at which time the applicants filed in court an amended notice of motion. On 10 October 2017 Meagher JA made orders dismissing the applications in “the amended notice of motion filed on 25 September 2017.” The matter now before the Court is an application to review that decision, made pursuant to an amended notice of motion filed on 24 November 2017.

Judgment of single judge

8. Meagher JA provided comprehensive reasoning for his refusal of the relief sought by the applicants. He concluded that, although the applicants sought to place responsibility for failure to comply with the relevant orders on the default of their lawyers, the material before the Court did not enable him to determine to what extent the lawyers were responsible for the default and to what extent it was the responsibility of the applicants. It was a matter for the applicants to persuade the judge that the failure to comply with the directions of the Court should be excused. That task was not made easier by the scale of the failures, extending to numerous directions over a period of some months. Following a careful consideration of the relevant material and the history of the matter, Meagher JA said that he could not “determine the extent to which that non-compliance was due to omissions of the lawyers that should not be attributed to the applicants.”[1] The effect of that conclusion was that there was no sufficient explanation of the failure to comply.

   1. Dimitriou v Huybers [2017] NSWCA 252 at [22].

9. The judge moved on to consider the prospects of success of the proposed appeal. That exercise, too, was attended by some difficulty, given the inadequacies of the grounds of appeal and the failure of the written submissions to address many of the grounds in an effective manner. Nevertheless, in what may be seen in such proceedings as an exhaustive attempt to ensure that there was no identifiable injustice in refusing the relief sought, the judge examined each of the broad issues sought to be raised but concluded with respect to each that there was no merit in the proposed appeal. His conclusion was an affirmative satisfaction that the appeal had “no realistic prospects of success.”[2]

   2. Huybers at [56].

Application for review

10. The application for review stated that “[t]he principles that govern review proceedings are not dissimilar to those that [govern] the grant of leave to appeal.” That proposition should not be accepted. At the very least, a party which has been in default of procedural requirements and directions with respect to the conduct of an appeal, resulting in the appeal being dismissed, has a heavy burden to establish error in the order dismissing the appeal. Furthermore, where a judge has reviewed that order and found that there has been no adequate explanation of the relevant failures and that the appeal has no real prospects of success, the applicants’ burden on a review application is significantly heavier.

(a)   no failure to comply with 5 June order

11. The first basis on which review was sought was that there had in fact been no failure to comply with the order made by the President on 5 June 2017, a submission said not to have been addressed by Meagher JA.

12. Order 1 made on 5 June was in the following terms:

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 5.00pm on 3 July 2017.

13. The applicants submitted that, because an amended notice of appeal had been filed before the order was made, the order should not have been made. It was further submitted that, having filed an amended notice of appeal, the applicants had in fact already complied with the order.

14. It is true that Meagher JA did not deal with this submission, which may have been because it was not expressly raised in the amended notice of motion of 25 September 2017. Nor was it expressly raised in the amended notice of motion for review of 24 November 2017. However, if it is to be addressed, it must be rejected. The order accepted that an amended notice of appeal had been filed but referred to the possibility that a “further amended notice of appeal”, which had then been proposed by the applicants, was to be filed. If such a document were filed, then both it and the written submissions in support were required to be filed by 3 July 2017; if no further amended notice of appeal were filed, the order nevertheless required that the written submissions be filed by 3 July 2017.

15. The lack of substance in this ground is demonstrated by the fact that the applicants did file a further amended notice of appeal and written submissions in support, but not until 21 or 22 September 2017. Although drafts of a form of a notice of appeal were attached to affidavits filed in August that was, nevertheless, well after 3 July 2017. An extension of time within which to do so was not sought, despite the terms of order 6 made by the President which permitted such an application to be made.

16. While the use of the words "and/or" in order 1 might in some circumstances be ambiguous, they were not in the present case. They allowed for the possibility that only written submissions would be filed, and allowed that that would be a sufficient compliance with the order. There is no substance in the suggestion that an “amended notice of appeal” having already been filed, the order was therefore complied with before it was made. The order expressly envisaged the possible filing of a “further amended notice of appeal”. Clearly, reading the order in its context, the existing document did not constitute compliance.

(b)   no inadequacy of explanation

17. The second matter raised in the applicants’ submissions was that the judge did not dismiss the matter on the basis of an inadequate explanation for non-compliance, because he was unable to resolve the extent to which that had been the responsibility of the applicants’ lawyers. He, therefore, dealt with the matter solely on the basis of the prospects of the proposed appeal.

18. If that were intended as a second error on the part of the judge, it was without substance. It was for the applicants to demonstrate an adequate and sufficient explanation for their noncompliance with directions. Meagher  JA clearly accepted that they had failed to do that. That was an essential element in reasoning to the dismissal of the application before him. There was no error in adopting that approach.

(c)   possible further evidence disregarded

19. The third basis of challenge appears to have been that Meagher JA addressed the grounds in the further amended notice of appeal without regard to “fresh evidence” which might be led on the appeal.

20. There was no application before Meagher JA for leave to call further evidence on the appeal. An application which has been made in this Court has been rejected for reasons which were given at the outset of the hearing. Even if there had been an application before Meagher JA, it could not affect the present application or, indeed, the application before Meagher JA himself, absent some indication of the content of the “fresh evidence”. Evidence was belatedly sought to be tendered in this Court, but was not accepted for reasons already noted.

(d)   other finding that appeal not unarguable

21. Finally, the written submissions prepared by the applicants complained that Meagher JA failed to deal with an observation made by Brereton J (on an earlier application for a stay with respect to orders of the trial judge) that “it was not unarguable that the authority of the Rubinos’ [sic], through their Agent (Son), was sufficient to authorise the payment away of funds by Pineview as trustee”. [3]

    3.    Applicants’ written submissions, filed 24/10/2017, p 5.

22. How Mr Frank Rubino, the son of the plaintiffs in the proceedings, could have had authority on behalf of Ms Huybers to direct payment of moneys held by the applicants was not explained. Nor does that proposition address the finding of the trial judge that Mr Frank Rubino was not a person upon whose evidence any reliance could be placed “unless it contained admissions or was consistent with facts otherwise objectively established”, a finding expressly referred to by Meagher JA. [4] Meagher JA dealt comprehensively with the arguability of the proposed appeal.

    4. Huybers at [33].

(e)   costs order refused at trial

23. In addition to the challenges to the dismissal of the application with respect to Ms Huybers and Pineview, the applicant also sought to appeal from the refusal to make a costs order against Mr Russo. No submissions were addressed to this element of the appeal, for which leave would have been required in any event, and, thus, no error has been shown in the failure of Meagher JA to set aside the dismissal of the appeal in this respect.

Conclusion

24. There is no basis to set aside the judgment under review. The notice of motion should be dismissed.

Costs of present application

25. There is an application by counsel for the respondents for an order for costs to be assessed on the indemnity basis. The usual principles applicable to indemnity costs have not been made out.

26. The order will be that the applicants pay the costs of the respondents to be assessed on the ordinary basis.

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Endnotes

Decision last updated: 28 March 2018