Florlim Pty Ltd v India Pty Ltd No. Scciv-03-95

[2003] SASC 292

FLORLIM PTY LTD V INDIA PTY LTD

[2003] SASC 292

Full Court: Bleby, Besanko and Sulan JJ

1. BLEBY J. On 19 June 2003, a Judge of this Court allowed an appeal by the present respondent, India Pty Ltd, from a decision of a magistrate dismissing the respondent’s claim for damages for wrongful repudiation of a lease. The matter was then remitted to the Magistrates Court for assessment of the respondent’s damages.

2. The defendants in the Magistrates Court were Florlim Pty Ltd, the lessee of the premises, Mr and Mrs Agalianos, directors of Florlim Pty Ltd, and ACN 066 741 544 Pty Ltd, of which Mr and Mrs Agalianos were also directors.  Although the claim for damages against all defendants was dismissed, the Judge on appeal ordered that the appeal be allowed and the matter be remitted to the Magistrates Court for assessment of damages. There appears to be an understanding between the parties that that can relate only to Florlim Pty Ltd. However, no judgment was entered against any particular defendant.  The present applicant for leave to appeal is Florlim Pty Ltd, the former tenant. The other defendants in the Magistrates Court proceedings are not applicants.

3. The application for leave to appeal was made on 4 July 2003, one day out of time.  In the absence on leave of the Judge who heard the appeal, the application for leave was incorrectly set down for hearing before the chamber judge who, on 18 July 2003, declined to deal with the matter on the ground that he was precluded from doing so by r 94.01 of the Supreme Court Rules. That requires the application to be made to the Judge appealed from or to the Full Court.

4. The applicant now seeks to have the application determined by the Full Court pursuant to r 94.01(1)(b)(ii) of the Supreme Court Rules.  At the request of the applicant, the application was initially considered privately by the Full Court in accordance with r 94.03(c). However, the Full Court has heard further brief argument today from both parties.

5. With the documents required to be lodged by r 94.03 and Practice Direction 13A, there was what purported to be a separate application made to the Full Court bearing a much later date. No such application has been filed.  I ignore that application, which is not necessary, as the original application has not been resolved. It is the original application which should have been included in the documents lodged for consideration by the Full Court.  I am prepared to treat that application as the application which is before the Full Court.

6. There is also an application for an extension of time within which to make the application for leave. The extension required is one day. An identical application was made by the same solicitor, in another matter, for another applicant, in identical circumstances. In each case, an affidavit in relatively identical terms was filed. The explanation in each case for the failure to comply with the time limit was as follows:

   “The reason for the delay was in the time taken to obtain instructions and to prepare and file an affidavit of merit. It took some time to draft a (sic) prepare the affidavit given that it included legal argument.”

7. If the application had been made to the Judge who heard the appeal, under r 94.01(1)(b)(i), no affidavit would have been required other than perhaps an affidavit indicating the grounds of the intended appeal.  As the application was referred, at the applicant’s request, for hearing privately by the Full Court, under r 94.01(1)(b)(ii), it required only the lodging of the documents required by r 94.03 and Practice Direction 13A.  That did not include an “affidavit of merit”.

8. The affidavit in support of the application for an extension of time is inadequate as a purported explanation for the delay in complying with the Rules. I can only infer that the solicitor takes the view that the time limits which are provided by the Rules have little or no consequence, and that an extension of time, if necessary, will be granted as of course if the solicitor handling the matter gives the impression of being busy.  I would wish to dispel any such view.  Time limits prescribed by the rules are to be observed.  There is nothing out of the ordinary about this application for leave to appeal. There was no reason why the application should not have been made within the time allowed by the Rules.

9. It would appear that, if the applicant’s solicitor had read the relevant Rules and Practice Direction, and had made an effort to comply with them, neither the “affidavit of merit” nor the application for an extension of time would have been necessary.

10. The respondent appeared on the hearing of the application and indicated that it was not prejudiced in any way by any extension of time. The extension required is only one day. The applicant cannot be blamed for the delay. It would appear to have been caused by its solicitor. The respondent can point to no prejudice, as I said, beyond that which, in fact, it would have suffered if the application were brought within time.

11. I would extend the time for bringing the application to the date on which it was filed, namely 4 July 2003.

12. I would grant leave to appeal on grounds substantially similar to those contained in para.24 of the applicant’s submissions in support of the application for leave to appeal.

13. I would also order that the costs of the respondent to the application for the extension of time be the respondent’s costs in the appeal.

14. I would further order that the costs of preparing the affidavit of Peter Austin Scragg, filed on 4 July 2003, and the costs of and incidental to the application for an extension of time, are disallowed as between solicitor and client.

15. BESANKO J.        I agree with the orders proposed by Bleby J and I agree with his reasons.

16. SULAN J. I agree.