Flint v Busuttil and Co Pty Limited

Link copied
Case Copied 30 min read

FEDERAL COURT OF AUSTRALIA

Flint v Busuttil & Co Pty Limited [2013] FCA 258

Citation: Flint v Busuttil & Co Pty Limited [2013] FCA 258
Appeal from: Application for extension of time: Flint v Richard Busuttil & Co Pty Ltd [2012] FMCA 1158
Parties: DENISE CHARLENE FLINT v RICHARD BUSUTTIL & CO PTY LIMITED
File number: ACD 4 of 2013
Judge: FOSTER J
Date of judgment: 25 March 2013
Legislation: Bankruptcy Act 1966 (Cth), s 41(7)
Civil Procedure Act 2005 (NSW)
Legal Profession Act 2004 (NSW), s 368(3), s 369
Federal Court Rules 2011, r 1.61, r 36.03
Uniform Civil Procedure Rules 2005 (NSW)
Civil Procedure Amendment (Fees) Regulation 2010 (2010 No 327) (NSW)  
Cases cited: Flint v Richard Busuttil & Co Pty Ltd [2012] FMCA 1158 related
Croker v Commissioner of Taxation (2005) 145 FCR 150 distinguished
Dennis v Miller (2012) 257 FLR 64 distinguished
DZAAD v Department of Immigration and Citizenship [2013] FCA 204 cited
Emerson v Wreckair Pty Ltd (1992) 33 FCR 581 cited
Lord v Rankine [2010] FMCA 668 distinguished
Olivieri v Stafford (1989) 24 FCR 413 cited
Rankine v Lord (2011) 9 ABC(NS) 142 distinguished
Date of hearing: 8 February 2013
Place: Sydney (via video link to Canberra) (heard in Canberra)
Division: GENERAL DIVISION
Category: No Catchwords
Number of paragraphs: 73
Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondent: Mr S Hausfeld
Solicitor for the Respondent: Rod J Barnett and Associates

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 4 of 2013
BETWEEN:

DENISE CHARLENE FLINT
Applicant
AND:

RICHARD BUSUTTIL & CO PTY LIMITED
Respondent

JUDGE:

FOSTER J

DATE OF ORDER:

25 MARCH 2013

WHERE MADE:

SYDNEY (VIA VIDEO LINK TO CANBERRA)

THE COURT ORDERS THAT:

1.The applicant’s Application for an Extension of Time within which to seek leave to appeal from, or, alternatively, to appeal from the decision of Federal Magistrate Neville given on 7 December 2012 (Flint v Richard Busuttil & Co Pty Ltd [2012] FMCA 1158) be dismissed.

2.The applicant pay the respondent’s costs of and incidental to the said Application.  

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 4 of 2013
BETWEEN:

DENISE CHARLENE FLINT
Applicant
AND:

RICHARD BUSUTTIL & CO PTY LIMITED
Respondent

JUDGE:

FOSTER J

DATE:

25 MARCH 2013

PLACE:

SYDNEY (VIA VIDEO LINK TO CANBERRA) (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

  1. The applicant, Ms Flint, is a real estate agent based in Canberra, A.C.T.

  2. For the first six months or so of 2007, the respondent (an incorporated legal practice) acted as the legal representative of Ms Flint in relation to proceedings in the Local Court at Batemans Bay, NSW.  In those proceedings, Ms Flint claimed against two former clients, Mr and Mrs Blunden, $110,000 for commission which she contended was due to her as the real estate agent who had acted for…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Flint v Busuttil and Co Pty Limited and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2013] FCA 258
Decision Date

CaseChat Overview and Summary

The parties involved in this case are Ms. Flint and Busuttil and Co Pty Limited. The dispute revolves around an action initiated by Busuttil and Co Pty Limited against Ms. Flint in the Local Court of New South Wales at Narooma, claiming legal fees and disbursements amounting to $6,178.80. Ms. Flint filed a defence and a cross-claim against the respondent, asserting that the respondent had not followed her instructions, had rendered excessive costs, and had performed its work negligently. The respondent amended its claim to $5,622.62, and both parties' claims were heard by a Local Court Magistrate. The Magistrate ruled in favour of the respondent, ordering Ms. Flint to pay the respondent's costs, which amounted to $6,889.74. Ms. Flint appealed the decision, but the appeal was later withdrawn and dismissed. The respondent subsequently applied for assessment of the costs awarded by the District Court, resulting in a costs assessment of $2,825.00 for the respondent and $771.88 for each party for the Costs Assessor's costs. Ms. Flint declined to pay her share of the Costs Assessor's costs, leading the respondent to file an application for judgment in the amount of $3,746.88.

The legal issues that the court needed to address in this case primarily revolved around Ms. Flint's Application for an Extension of Time. The court had to consider whether to grant Ms. Flint an extension of time within which to seek leave to appeal from, or appeal from the decision of Federal Magistrate Neville given on 7 December 2012. The court needed to evaluate the length of the delay, Ms. Flint's explanation for the delay, any potential prejudice to the respondent, and the merits of the appeal. The court also needed to determine whether Ms. Flint had provided a satisfactory explanation for the delay and whether the appeal had any prospect of success.

The court's reasoning and outcome in this case were based on the principles established in DZAAD v Department of Immigration and Citizenship [2013] FCA 204. The court acknowledged that it had a broad discretion whether or not to grant an extension of time. The court considered that Ms. Flint had not satisfactorily explained the delay in filing her appeal process, despite being advised by Sydney Counsel experienced in bankruptcy matters. The court also noted that the appeal had no prospect of success, as the Minister opposed the grant of an extension of time on this basis. In light of these factors, the court decided to dismiss Ms. Flint's Application for an Extension of Time and ordered her to pay the respondent's costs of and incidental to the said Application.

In conclusion, the court dismissed Ms. Flint's Application for an Extension of Time within which to seek leave to appeal from, or appeal from the decision of Federal Magistrate Neville given on 7 December 2012. The court ordered Ms. Flint to pay the respondent's costs of and incidental to the said Application, as per the provisions of Rule 39.32 of the Federal Court Rules 2011. The court's decision was based on the unsatisfactory explanation provided by Ms. Flint for the delay in filing her appeal process and the lack of prospect of success for the appeal.

Orders

Orders of the court

1. The applicant’s Application for an Extension of Time within which to seek leave to appeal from, or, alternatively, to appeal from the decision of Federal Magistrate Neville given on 7 December 2012 (Flint v Richard Busuttil & Co Pty Ltd [2012] FMCA 1158) be dismissed.

2. The applicant pay the respondent’s costs of and incidental to the said Application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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

These Reasons for Judgment determine Ms Flint’s Application for an Extension of Time. THE LOCAL COURT JUDGMENTS On 5 October 2007, the respondent commenced an action against Ms Flint in the Local Court of New South Wales at Narooma. The claim was for legal fees and disbursements in the amount of $6,178.80. Ms Flint filed a Defence to that claim on 30 October 2007. In that Defence, she pleaded that the respondent had not complied with her instructions; that the costs rendered by it were excessive and not in accordance with the Costs Agreement between her and the respondent dated 10 February 2007; and that the respondent’s work had been performed negligently. On 9 November 2007, Ms Flint filed a Cross-Claim against the respondent for damages allegedly suffered by her by reason of the respondent’s negligence and delays. On 14 March 2008, the respondent amended its claim by reducing the quantum thereof to $5,622.62. The respondent’s claim and Ms Flint’s Cross-Claim were both heard by a Local Court Magistrate on 12 February 2009. The Magistrate gave judgment on 1 May 2009. He found for the respondent against Ms Flint on the principal claim and ordered Ms Flint to pay the respondent’s costs of the action. He found that the respondent had not been negligent. The Magistrate ordered that there be judgment for the respondent in the amount of $6,889.74. That sum comprised the respondent’s claim for fees and disbursements, interest, costs and fees. Included within that judgment was a fee “… for issue of Certification of Judgment …” in the amount of $52.00. On 28 May 2009, Ms Flint filed a Notice of Appeal in the District Court of New South Wales by which she sought to overturn the Magistrate’s decision. That appeal was withdrawn and dismissed, by consent, on 3 September 2009. On 9 December 2009, the respondent applied to the Supreme Court of New South Wales for assessment of the costs awarded to it by the District Court on 3 September 2009. By Certificate of Determination of Costs dated 31 March 2010 issued pursuant to s 368 of the Legal Profession Act 2004 (NSW) (the LPA), a Costs Assessor determined that the respondent was entitled to the amount of $2,825.00 for its costs and disbursements incurred in respect of the District Court appeal. By a separate Certificate of Determination dated the same day issued pursuant to s 369 of the LPA, the Costs Assessor determined that each of the respondent and Ms Flint should pay half of his costs of carrying out the costs assessment. Each of them was required to pay $771.88 under that Certificate. The respondent paid its share of the costs of the Costs Assessment. Ms Flint did not pay her share. Ms Flint declined to pay her half share of the Costs Assessor’s costs of the assessment. The respondent did so in order to obtain the release of the s 368 Certificate. It is the practice of the Manager, Costs Assessment, not to release such certificates until the Costs Assessor’s costs are paid. In early May 2010, the respondent applied to the Local Court of NSW at Narooma for judgment in the amount of $3,746.88.

Ratio Decidendi

Legal Principle Established

Ms Flint also made submissions concerning the Creditor’s Petition in proceeding No CAG 61 of 2011. As I have already mentioned, although that matter has now been transferred to this Court, it remains unresolved pending the determination of the present Application. CONSIDERATION In DZAAD v Department of Immigration and Citizenship [2013] FCA 204, at [28]–[30] I said:28The Application is brought under r 36.05 of the Federal Court Rules 2011. As the Minister has submitted, r 36.05 confers upon a court a broad discretion whether or not to grant an extension of time. The considerations generally relevant in determining whether an extension of time should be granted are well known. They include the length of the delay, whether the applicant has provided an acceptable explanation for the delay, whether there is any prejudice to the respondents and the merits of the appeal if an extension is granted (Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348–349 (per Wilcox J); Jess v Scott (1986) 12 FCR 187 (per Lockhart, Sheppard and Burchett JJ); Parker v The Queen [2002] FCAFC 133 at [6] (per Spender, O’Loughlin and Dowsett JJ); Peck v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 810 at [16]–[27] (per Foster J); SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 at [16]–[25] (per Cowdroy J)). 29The Minister has, quite properly, accepted that, given the short delay involved in the present case and the difficulties confronting the applicant as an unrepresented litigant in circumstances where he had family separation issues with which to deal as well as a move to Canberra, the applicant has more than adequately explained any delay in instituting his appeal. The Minister, nonetheless, opposes the grant of an extension of time on the basis that the appeal which the applicant seeks to file has no prospect of success. The Minister submitted that an extension of time, even for a short period, may be refused if an appeal has no prospect of success (as to which, see Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211 at 216 [14] per Jessup J with whom Gyles and Besanko JJ agreed).30It would be a proper exercise of the Court’s discretion to refuse the extension of time which has been sought if the appeal has no prospect of success, even if the delay is a short one. That brief statement of the relevant principles is apt to be applied in the present case, although Ms Flint has an additional difficulty because, in my judgment, she has not satisfactorily explained the delay in filing her appeal process. She was, after all, being advised throughout the relevant period by Sydney Counsel experienced in bankruptcy matters who must be taken to be very familiar with the relevant provisions of the FCR. Ms Flint’s explanation for missing the deadline for filing her appeal process is that she was mistaken as to when that deadline was. This is not a satisfactory explanation for the delay in the present case.