Giza v Waybecca Pty Ltd - [2016] VSCA 78

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0002

RICHARD GIZA	Applicant
v
WAYBECCA PTY LTD	Respondent

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JUDGES:	SANTAMARIA and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 April 2016
DATE OF ORDERS:	15 April 2016
DATE OF REASONS:	22 April 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 78
JUDGMENT APPEALED FROM:	[2014] VSC 443 (Hargrave J) [2015] VSC 678 (Lansdowne AsJ)

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PRACTICE AND PROCEDURE – Application for extension of time – Non-party seeking extension of time to appeal – Whether applicant has standing – Substantial delay in bringing application – Unsuccessful party not appealing – No satisfactory reason for delay – Prospects of success of appeal – No error of law identified – Application dismissed.

PRACTICE AND PROCEDURE – Application for stay – Special or exceptional circumstances – No special or exceptional circumstances raised – Supreme Court (General Civil Procedure) Rules 2015 r 64.39 – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	Mr P T Baker	Falcone & Adams

SANTAMARIA JA
McLEISH JA:

Summary

On 6 June 2014, a magistrate ordered that a registrar of the Magistrates’ Court execute a transfer of land to give effect to the settlement of a contract dated 7 December 2012, whereby Waybecca Pty Ltd (‘the respondent’) agreed to purchase a parking lot from Joseph Vella (‘Mr Vella’). Thereafter, Richard Giza (‘Mr Giza’), a person not qualified as an Australian legal practitioner, purported to commence an appeal in the Supreme Court on behalf of Mr Vella. Associate Justice Lansdowne ruled that the appeal was incompetent as Mr Giza was not qualified to represent Mr Vella. That ruling was upheld by Hargrave J. Subsequently, Hargrave J referred the hearing and determination of the appeal to Lansdowne AsJ. Associate Justice Lansdowne heard and dismissed the appeal and made various costs orders including orders that Mr Vella and Mr Giza pay the respondent’s costs of the appeal on an indemnity basis.

On 16 January 2016, Mr Giza filed an application for leave to appeal. An amended application for leave to appeal is dated 22 January 2016. The amended application identifies two other applications, being an application for an extension of time for leave to appeal the orders made by Hargrave J and for a stay of the costs orders made by Lansdowne AsJ. It is these last two applications that are currently before the Court.

For the reasons that follow, the application for the extension of time and the application for the stay should be refused.

Background

Mr Vella is the registered proprietor of an accessory unit (number 34) at 595 Chandler Road, Keysborough. By contract of sale dated 7 December 2012, the respondent agreed to purchase unit 34 from Mr Vella. The agreed price for the sale was $15,000 plus GST and a deposit of $3,000 was paid. Settlement was due on 20 December 2012.

Mr Vella, Mr Giza and the respondent also entered into a deed on 7 December 2012, along with a company…

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: [2016] VSCA 78
Decision Date: 22 April 2016

CaseChat Overview and Summary

In the matter of Giza v Waybecca Pty Ltd, the respondent, Waybecca Pty Ltd, applied for an extension of time to appeal against the decision of the primary judge, and a stay of the proceedings in the lower court. The applicant, Giza, opposed both applications. The Court was required to determine whether the applicant had standing to apply for an extension of time, whether the delay was satisfactorily explained, and whether there were special or exceptional circumstances warranting a stay of the proceedings. The Court examined the applicant's standing, finding that the applicant was not a party to the proceedings and did not have standing to apply for an extension of time. The Court also found that there was a substantial delay in bringing the application and no satisfactory reason for the delay. Additionally, the unsuccessful party had not appealed, and the applicant had not identified any error of law that would warrant an appeal. The Court further found that the applicant had not demonstrated any special or exceptional circumstances that would warrant a stay of the proceedings. Accordingly, the Court dismissed both the application for an extension of time and the application for a stay of the proceedings. The Court found that the applicant did not have standing to apply for an extension of time, the delay was not satisfactorily explained, and there were no special or exceptional circumstances warranting a stay of the proceedings.

Orders