Hasanov v Coventry Village Pty Ltd
[2015] WADC 142
•4 DECEMBER 2015
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: HASANOV -v- COVENTRY VILLAGE PTY LTD [2015] WADC 142
CORAM: DAVIS DCJ
HEARD: 8 SEPTEMBER 2015
DELIVERED : 4 DECEMBER 2015
FILE NO/S: APP 44 of 2015
BETWEEN: MURTEZA HASANOV
Appellant
AND
COVENTRY VILLAGE PTY LTD
Respondent
ON APPEAL FROM:
For File No : APP 44 of 2015
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE MALONE
File No :GCLM 13013 of 2012
Catchwords:
Application for extension of time to appeal from a decision of Magistrate - Turns on own facts
Legislation:
Magistrates Court (Civil Proceedings) Act 2004 s 40
Result:
Application for extension of time to appeal refused
Appeal dismissed
Representation:
Counsel:
Appellant: Mr C L Cheng
Respondent: Mr P F Fletcher
Solicitors:
Appellant: ML Legal
Respondent: Fletcher Law
Case(s) referred to in judgment(s):
ACCC v CG Berbatis Holdings Pty Ltd (2003) 214 CLR 51
Attorney-General (NSW) v World Best Holdings Ltd (2005) 63 NSWLR 557
Avsar v Binning [2009] WASCA 219
Brocklehurst v Wolinski [2015] WADC 36
Cameron v UBS AG [2000] VSCA 222; (2000) 2 VR 108
City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Commercial Bank of Australia v Amadio [1983] HCA 14; (1983) 151 CLR 447
du Boulay v Worrell [2009] QCA 63
Grant v Mansom [2013] WADC 53
Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2012] WASCA 216; (2012) 45 WAR 29
KWS Capital Pty Ltd v Love [2015] WASCA 237
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10; (2010) 41 WAR 353
Rajski v Scitec Corporation Pty Ltd (Unreported, NSWCA, BC8601930, 16 June 1986
Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148
Reid v South West Regional College of TAFE [2015] WASCA 231
Roy Galvin & Co Pty Ltd v Ives [No 2] [2013] WADC 128
Simonsen v Legge [2010] WASCA 238
Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [2014] WASCA 164
The Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239; (2008) 225 FLR 1
The Lunching Pad Pty Ltd v Minister for Culture and the Arts [2001] WASC 299
Tobin v Dodd [2004] WASCA 288
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Western Export Services Inc v Jireh International Pty Ltd (2011) 282 ALR 604
DAVIS DCJ: On 9 June 2015, the appellant, Mr Hasanov, filed an appeal against a decision of Magistrate Malone made on 20 December 2013 where his Honour granted judgment in favour of the respondent, Coventry Village Pty Ltd (Coventry) against Mr Hasanov in the sum of $55,674.70.
The appeal was brought 18 months after the judgment. The appeal should have been brought within 21 days: see s 40(3) of the Magistrates Court Civil Proceedings Act 2004 (MCCPA).
Leave to bring this appeal out of time is therefore required pursuant to s 40(3) of the MCCPA, and Mr Hasanov has applied for an extension of time within which to appeal. The application is opposed by Coventry.
For the reasons which follow, I consider that the application for an extension of time within which to appeal should be refused and the appeal dismissed.
Factual background and the decision appealed from
The following facts are taken from the admissible parts of the affidavit sworn by Mr Hasanov on 9 June 2015 in support of his application for an extension of time within which to appeal. (Certain paragraphs in this affidavit have been struck out after I upheld a number of objections by counsel for Coventry). I have also had regard, as provided in s 40(4) of the MCCPA and r 50(1) of the District Court Rules 2005, to the material which was before the magistrate, in particular an affidavit sworn by Mr Hasanov on 1 November 2013 prepared by his then solicitors.
In July 2011 Mr Hasanov entered into a written lease agreement with Coventry for a shop at premises known as Coventry Square Markets in Morley. The lease was for a period of three years commencing 1 January 2012.
Not long after Mr Hasanov took possession, a dispute arose between Mr Hasanov and Coventry. Mr Hasanov alleged that Coventry had made misrepresentations to him which induced him to enter the lease agreement.
Mr Hasanov refused to pay rent and abandoned the premises on 28 February 2012. Coventry treated this as a repudiation by Mr Hasanov, which it accepted, and Coventry terminated the lease.
Subsequently Coventry issued a minor case claim in the Magistrates Court, claim 6290/2012 for unpaid rent of $6,006 and damages of $3,003. Later, in August 2012, after Coventry subsequently re‑leased the premises it issued Magistrates Court General Procedure Claim 13013/2012 claiming damages of $59,150 for Mr Hasanov's repudiation of the lease agreement.
Mr Hasanov defended the claims and engaged solicitors. Those solicitors ceased acting for him in December 2012, but he engaged new solicitors in January 2013.
In the Magistrates Court Claim 13013/2012, Mr Hasanov filed a defence and counterclaim seeking damages of $75,000 for the alleged misrepresentations and unconscionable conduct by Coventry. The amount sought related to sums of $4,500 for the cost of fitting out the shop, $59,400 for loss of income and damages for stress and anxiety.
In July 2013 Mr Hasanov and Coventry entered into a settlement of the two Magistrates Court actions, signing a deed of settlement dated 17 July 2013 (the Deed). The settlement was arranged after a Coventry representative, Jennifer Poland, contacted Mr Hasanov by telephone offering to resolve the dispute if he agreed to pay $13,000 (and there was a discussion about payment by monthly instalments, and that a deed would be provided for signing). Two days later Mr Hasanov attended the offices of Coventry to sign the Deed. The terms of the settlement were as set out in the Schedule to the Deed, Item 4:
Item 4 – Special Conditions:
1.The Lessee will pay the Lessor damages of THIRTEEN THOUSAND DOLLARS ($13,000.00) of the SIXTY EIGHT THOUSAND SIX HUNDRED AND SEVENTY FOUR DOLLARS AND SEVENTY CENTS ($68,674.70) owing by way of
a.one payment of TWO THOUSAND DOLLARS ($2,000.00) on or before July 16, 2013.
b.ONE THOUSAND DOLLARS ($1,000.00) per month commencing on 15 August 2013; and
c.Monthly payments shall be to the Lessor's account at the Commonwealth Bank of Australia BSB 066000 Account 11752434.
2.The Lessee agrees and acknowledges that if a payment is more than SEVEN (7) days late, the Lessee will consent to judgement for the full amount ($68,674.70) minus what has been paid to date.
3.Upon receipt of the last payment, the Lessor will file Notice of Discontinuance for matters MINOR/6290/2012 and GCLM/13013/2012.
4.The Lessee will not communicate with any previous, current or future tenant of Coventry Village, or third party in respect of the conduct of either or both the Lessee's business and the Lessor's business at Coventry Village, disclose any information relating to the Lease or make any detrimental comments to any third party regarding Coventry Village.
5.Once Lessee has paid THIRTEEN THOUSAND ($13,000.00) no more money is owed.
The last clause, cl 5, was written in by hand after discussions between Coventry's representative, Ms Poland, and Mr Hasanov. In Mr Hasanov's affidavit sworn 1 November 2013 he deposed to looking at the Deed, noticing that it referred to $68,674.70, and querying the sum of $68,674.70 and special conditions 1 ‑ 4. His evidence (par 20 of his affidavit) was that Mrs Poland replied with words to the effect that:
(a)nothing would happen in relation to the action;
(b)once the thirteen thousand ($13,000) is paid then 'no more money is owed';
(c)the special condition clause 5 was the only clause I should rely on and I should ignore previous special condition clauses; and
(d)the balance of the deeds were merely 'formality' to settle the Dispute.
Mrs Poland then proceeded to include a new special condition clause 5.
The agreement to settle and the signing of the Deed took place between the parties without the involvement of any solicitors.
Mr Hasanov made the first payment of $2,000 on 16 July 2013. He failed to make the payment of $1,000 due on 15 August 2013.
On 6 September 2013 Coventry filed an application in the Magistrates Court seeking orders, inter alia, that there be judgment for Coventry in the amount of $66,674.70 pursuant to the terms of the Deed. That application was listed for hearing on 18 October 2013.
On 16 September 2013 Mr Hasanov made a payment to Coventry of $3,000. On 14 October 2013 he made a further payment of $1,000.
On 16 October 2013 Mr Hasanov's solicitors ceased to act for him.
On 18 October 2013 at the return date of Coventry's application for judgment on the Deed, directions were made for the filing of a response by Mr Hasanov and the matter was adjourned to 11 November 2013. During that hearing, which took place before Magistrate Boon, Mr Hasanov was self-represented and the following exchanges took place when Mr Hasanov stated that he had gone in to make the payment which was due in August 2013 (ts 3 and 4 – 6):
HASANOV, MR: And when they call me to get the settlement out and I agree to pay them $13,000 and all this case is to be finish. And we went there, and I pay them $2000 with credit card.
HER HONOUR: Yes.
HASANOV, MR: And then after I did need to pay them next month, on the 17 or 15, something like that, other thousand dollars. But my financial situation ‑ ‑ ‑
HER HONOUR: You can't pay it.
HASANOV, MR: I didn't pay.
HER HONOUR: No.
HASANOV, MR: So I went there after 10 days to pay them.
HER HONOUR: All right.
HASANOV, MR: With the credit card. And they didn't agree to pay them. And she said that she's busy, she can't talk with me, and she make appointment after one week, to see each other. And after she cancelled our appointment, and she said with the secretary that she will call me. But she didn't call me. And after then, I went there – I went to the bank, and I paid $3000.
…
HER HONOUR: Which date did you try to pay it and ‑ ‑ ‑
HASANOV, MR: It's 10 day after – let's say it's the 15th, after 10 days I went there. So I was late three days of the date that if the seven days they allowed me, if they allowed me seven days, example, they allowed me until Monday, I went ‑ ‑ ‑
HER HONOUR: So it was 10 days late and not three days late, is that right?
HER HONOUR: From seven days. Because they allowed me seven days to pay it, so from this seven days I was late three days.
HER HONOUR: But do you understand that the deed – I misunderstood what he was saying ‑ ‑ ‑
THORPE, MR: Yes.
HER HONOUR: Do you understand that the deed says you have to pay it on a certain day. If you don't pay it within seven days after that date the deed's off.
HASANOV, MR: I went there, apology, because I'm self employed, and I not have money, and ‑ ‑ ‑
HER HONOUR: Well ‑ ‑ ‑
HASANOV, MR: I asked him for apologise ‑ ‑ ‑
HER HONOUR: Yes.
HASANOV, MR: And to be three days, you know, it's not big interest, or anything like that, because I was happy to pay $3000.
HER HONOUR: You owed a certain amount – this is how I understand it – you owed a certain amount, and then you entered into an agreement to pay a smaller amount, and it was quite a stripped agreement ‑ ‑ ‑
HASANOV, MR: I was late, yes.
Mr Hasanov made two further payments to Coventry in November – the sum of $6,000 paid on 1 November 2013 and a final payment of $1,000 on 4 November 2013.
Also on 1 November 2013 new solicitors acting for Mr Hasanov filed a notice of change of address for service and filed a response to the application and the affidavit of Mr Hasanov sworn 1 November 2013. On 8 November 2013 a further affidavit of Mr Hasanov sworn 8 November 2013 was filed.
On 11 November 2013 Coventry's application was listed for a special appointment on 20 December 2013. Two days before this hearing, on 18 December 2013, written submissions were filed by the solicitors acting for Mr Hasanov.
From my reading of Mr Hasanov's affidavits and the written submissions filed by his solicitors, his defence in answer to Coventry's application was, in essence, that there had been an oral agreement for the compromise of Coventry's claim and Mr Hasanov's counterclaim on the basis that in full and final settlement of the proceedings, Mr Hasanov would pay the sum of $13,000, by instalments, which Mr Hasanov had now paid. It was submitted that Mr Hasanov was induced to enter into the Deed in circumstances where his English is not good (his first language is not English), he was not given the chance to seek independent legal advice, and he did not appreciate the significance of the provisions regarding Coventry's right to judgment (Mr Hasanov's affidavit of 1 November 2013 par 29; written submissions par 9 to 11).
In Mr Hasanov's affidavit sworn 1 November 2013 he deposed to being 'led to believe' that cl 5 of the Deed 'would override the balance of the deed such that once I paid $13,000.00 no more money is owed' (par 21).
In the written submissions filed by his solicitors it was submitted that the Deed did not reflect the oral agreement which had been reached and the Deed should be set aside (par 16). There was also a submission that as Mr Hasanov had since paid the $13,000 earlier than had been agreed, any attempt by Coventry 'to extract more money than was agreed is unconscionable' (written submissions par 13 to 15).
At the hearing of Coventry's application on 20 December 2013, his Honour Magistrate Malone considered the evidence, including the express terms of the Deed and found as follows (in oral reasons which were transcribed; ts 20 – 21):
HIS HONOUR: Now the situation is that the deed, provided the total of 13,000 was to be paid in instalments, that the first 2000 was to be paid on or before 16 July and then it was to be $1000 per month, commencing on 15 August. Clause 2, provided that the lessee agrees and acknowledges, if a payment is more than seven days late, the lessee will consent to judgment for the full amount, 68,674.70 minus what has been paid to date.
Now, the situation just obviously from the affidavit material that has been filed by Mr Hasanov is that I'm in a position to conclude that clearly the terms of the deed were not complied with strictly, in the sense that sure, it was the case that $2000 was filed on 17 July and I'm looking particularly at the affidavit of Mr Hasanov, the day (indistinct) sworn 1 November, but identifiably at paragraph 24, he says that the next payment was made on 16 September when he paid the sum of $3000.
Now, what Mr Hasanov has gone on to point out is that he's actually rushed in and paid all the $13,000 and that the – so in that sense the claimant has got their money, which they anticipated as receiving under the terms of the deed and effectively in some way it's unconscionable for the application to be brought. But it is very much in the context that that's what the terms of the deed said. Now, the parties had well and truly joined issue. There was a large claim and a large counterclaim and one can only, I think, reasonably assume that the 13,000, which was significantly less, of course, than the amount claimed, was a compromise all round.
But it was a compromise on strict conditions, which were that the payments had to be made and if there was a default, then the whole amount would fall to be – fall due. Now, Mr Hasanov makes a series of points that he had this understanding and that understanding, he didn't have a chance to get legal advice but the whole, through the whole period, Mr Hasanov certainly had a lawyer available to him. It's the case in his evidence, that he indicates that, that whilst there might have been a change of firms representing him, nevertheless he had access to legal advice.
He signed the deed and as was pointed out by Mr Thorpe, he does want it recognised but then claims that he didn't understand it and has made a whole lot of references to him being told this or that, as being the situation. I recognise readily that it always seems awkward when somebody is looking for a compromise of 13,000 and they find themselves having submitted to a judgment for a much larger amount, but that's exactly the situation that the deed contemplated.
Mr Hasanov went into, went and signed the deed, as I say, in a context where he had retained lawyers throughout the period and it just seems to me that none of the arguments that are raised by Mr Hasanov are tenable in terms of the deed not being an accurate reflection of what was agreed between the parties, a substantial compromise by the claimant. Perhaps a substantial compromise, for that matter, by the defendant but on strict conditions that he had to make the payments.
Clearly, in a pragmatic sense, Ms Hasanov has rushed in and tried to pay it all, but he's caught by the terms of the deed and it just seems to me that notwithstanding the material filed by Mr Hasanov and the arguments, that quite frankly, the claim of the claimant is irresistible and I'm proposing to enter judgment as requested by the claimant against the defendant.
Principles on an application for extension of time within which to appeal
The Court of Appeal in Simonsen v Legge [2010] WASCA 238 [8] set out the relevant matters to consider when a party's appeal is out of time and that party seeks to extend the time for filing a notice of appeal.
The principles in Simonsen v Legge have been applied in this court in relation to s 40(3) of the MCCPA in a number of cases, including Roy Galvin & Co Pty Ltd v Ives [No 2] [2013] WADC 128 (Herron DCJ); Lance v Hogerdyk [2013] WADC 190 (Davis DCJ) and Brocklehurst v Wolinski [2015] WADC 36 (Derrick DCJ). It is appropriate to apply those principles here.
In summary, the grant of an extension of time is not automatic and court has a discretion to extend time. The purpose of the discretion is to enable the court to do justice between the parties in the particular circumstances of the case. In the exercise of the discretion, the factors that will ordinarily be relevant as set out in Simonson v Legge [8](d) are:
(a)the length of the delay,
(b)the reason for the delay,
(c) the appellant's prospects of success on the appeal, and
(d)the extent of any prejudice to the respondent if the time was extended.
Other factors may include whether the delay was intentional, or contumelious, or merely the result of a bona fide mistake or blunder, and whether the delay is that of the litigant or of its lawyers with which the litigant should not be saddled: City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120 [33]; Simonson v Legge [8](d).
The appellant must explain the delay and justify the extension. The greater the delay, the greater the need for a cogent explanation for it: Girando v Girando (1997) 18 WAR 450, 454; Simonson v Legge [8](f).
Whilst it is the case that the time for appealing will not be extended unless the proposed appeal has some prospects of success, it does not follow that time must be extended if the appeal has prospects of success. The fact that the proposed appeal has prospects of success is a factor which might be outweighed by other factors: City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120 [17]; Simonson v Legge [8](g) and (h).
Length of the delay
The time by which this appeal should have been filed was, as I have mentioned, within 21 days from Magistrate Malone's decision of 20 December 2013. On my calculation the appeal should have been filed by 10 January 2014.
The delay is a very lengthy one of 17 months.
Reason for delay
To explain the delay Mr Hasanov has relied on the fact that, for certain periods, he was self‑represented and is ignorant of the court rules and procedures. He made a number of applications in the Magistrates Court and in this court which, as his present solicitors have described in their submissions, were 'procedurally flawed'.
It is necessary to set out the chronology of events following the decision of Magistrate Malone.
After the hearing on 20 December 2013 Mr Hasanov was contacted by his lawyer and met with her that day. She advised Mr Hasanov that judgment had been entered against him for $55,674.70, that her firm were ceasing to act for him and if he was not happy with the decision of the magistrate, he could make application to set aside the judgment.
Mr Hasanov was also advised by the Magistrates Court registry that there was no record of anyone representing him at the hearing before Magistrate Malone.
Mr Hasanov, who at this stage was self-represented, filed an application in the Magistrates Court on 22 January 2014 seeking to set aside the judgment, with an affidavit in support sworn 22 January 2014. In that affidavit he claimed that his lawyer failed to represent him at the hearing and failed to attend court.
On 25 February 2015 Coventry responded to the application and filed, the next day, an outline of submissions.
On 28 February 2014 Mr Hasanov's application to set aside the judgment was heard and dismissed by Magistrate Boon. At that hearing her Honour confirmed that Mr Hasanov's lawyer had been present and represented Mr Hasanov at the hearing before Magistrate Malone, although Magistrate Malone did not write that down.
Her Honour Magistrate Boon also made it very clear to Mr Hasanov that what he was doing was trying to appeal Magistrate Malone's decision and that 'it needs to go to a higher court if you're trying to appeal it' (ts 3). Her Honour told Mr Hasanov more than once that she had no power to hear an appeal from a decision of another magistrate (ts 3 and ts 6). She was also at pains to explain that he could not keep bringing an application like the one before her, and keep going back before a magistrate (ts 4). Finally, her Honour recommended that Mr Hasanov get some legal advice, and suggested he attend a community legal centre if he did not have money for a lawyer.
I should also observe that in Coventry's written submissions which were filed before this hearing, it was clearly stated, in par 3, that 'the appropriate procedure is by way of appeal to the District Court'. At the hearing before Magistrate Boon on 28 January 2014, Mr Hasanov confirmed with the magistrate that he had received those submissions (ts 2).
By the end of the hearing on 28 January 2014, even without legal advice which Magistrate Boon suggested he obtain, Mr Hasanov must have been aware that an appeal from Magistrate Malone's decision was required. Yet he did not bring an appeal. Instead, he brought yet another application in the Magistrates Court to set aside the judgment, with another affidavit sworn in support, which he filed on 21 March 2014.
That application was heard on 9 May 2014 by another magistrate, Magistrate Atkins, and dismissed.
On 30 May 2014 Mr Hasanov, who was still self-represented, filed an appeal from Magistrate Atkins' decision in this Court.
On 16 September 2014, Mr Hasanov's appeal from Magistrate Atkins' decision was struck out.
On 14 December 2014 Mr Hasanov filed a chambers summons in this court seeking to appeal the decision of 16 September 2014 striking out his appeal.
On 23 January 2015 Mr Hasanov engaged a new firm of solicitors, who now represent him in this appeal. A solicitor from that firm attended the hearing of Mr Hasanov's chamber summons on 30 January 2015. The chamber summons was dismissed.
On 9 June 2015 the Appeal Notice the subject of this application, namely the appeal from Magistrate Malone's decision, was filed.
In written submissions filed by counsel for Mr Hasanov for this hearing, it was submitted that Mr Hasanov had taken a 'complex legal matter into his own hand' and did not intentionally delay the appeal. On the contrary, it was submitted that Mr Hasanov has been 'diligently pursuing his rights and interests in this matter'. Reliance was also placed upon the fact that Mr Hasanov is a migrant and English is his second language.
According to the information contained in the affidavits filed by Mr Hasanov, he is Macedonian. He has been living in Australia for some time – while he has not deposed to when he arrived, he has stated that he completed an Adult Migrant English Program in 2002 – so he has been in this country for at least 13 years. His occupation is a photographer, which would require a reasonable standard of English.
From my review of the transcripts of the Magistrates Court hearings where he represented himself, his spoken English was reasonably good. In my view he demonstrated an excellent level of understanding in relation to what was said to him, answering questions appropriately. An example of this is the hearing which took place before Magistrate Boon on 18 October 2013, passages from which I have set out in [19] above.
Mr Hasanov also filed affidavits in the Magistrates Court which he prepared himself, one sworn 22 January 2014 and the other sworn 21 March 2014. While not always grammatically correct, I have no difficulty in understanding what he is saying in these affidavits. In both affidavits he gave a good summary of what he said occurred in discussions and at the meeting with Ms Poland. In his affidavit sworn 21 March 2014 he used words like 'inhumanity', 'misleading', 'misrepresenting' and 'manipulate' or 'manipulating' in an appropriate context, to describe what he saw as Coventry's conduct. He also wrote cogently in each affidavit about his own financial situation, completing both affidavits as follows:
I do not have any more money. I borrowed the $13,000 from family, friends, Cash converters finance and have sold personal items to raise this amount.
I am asking the Court and Coventry Square to release me from this matter as the $13,000 was the final payment for the matter to be mutually settled.
I do not consider that Mr Hasanov was under any special difficulty by reason of the fact that English is his second language.
As to the fact that he represented himself for a time, the general principles relating to an unrepresented litigant were stated by Samuels J in Rajski v Scitec Corporation Pty Ltd (Unreported, NSWCA, BC8601930, 16 June 1986):
In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.
These principles have been applied in a number of cases including Tobin v Dodd [2004] WASCA 288 [14] and Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51].
In du Boulay v Worrell [2009] QCA 63 [69], Muir JA (with whom Fraser JA agreed) said:
It may be that self-represented litigants should be afforded a degree of indulgence and given appropriate assistance. But if a self-represented person wishes to litigate, he or she is as much bound by the rules of Court as any other litigant. Those rules exist to facilitate efficient, fair and cost-effective litigation. The Court's duty is to act impartially and ensure procedural fairness to all parties, not merely one party who may be disadvantaged through lack of legal representation. The other party to the litigation is entitled to protection from oppressive and vexatious conduct regardless of whether that conduct arises out of ignorance, mistake or malice.
Given the background as I have set out, and having regard in particular to what he was told by Magistrate Boon in February 2014, Mr Hasanov must have been aware that there were court processes and time limits with which he had to comply.
It was up to Mr Hasanov to find out the court processes and time limits which applied to bringing an appeal from Magistrate Malone's decision of 20 December 2013.
The time limits in the MCCPA for bringing an appeal to this court cannot be avoided by Mr Hasanov relying on the fact that he was not always legally represented.
In my view Mr Hasanov's explanations for the whole of the delay are inadequate, particularly for the delay since the hearing before Magistrate Boon on 28 February 2014.
In the particular circumstances of this case, to allow an extension of time based on the fact that Mr Hasanov was, for a time, a self‑represented litigant, with English as his second language, would give him a privileged status which, in my view, would be quite unfair to the respondent, Coventry.
There has in any event, in my view, been no adequate explanation for the delay between when Mr Hasanov instructed his present solicitors, in January this year, and when the appeal was filed, on 9 June. The only explanation proffered is some delay in obtaining the Magistrates Court transcripts. According to an affidavit sworn on 7 July 2015 by Jason Stanley McDonald, the principal of the firm of solicitors engaged by Mr Hasanov, the transcript of the hearings of 20 December 2013 (the hearing before Magistrate Malone), 28 February 2014 (the hearing before Magistrate Boon) and 9 May 2014 (the hearing before Magistrate Atkins) were all requested on 2 February 2015. According to the affidavit of Mr McDonald (par 13) 'the Magistrates Court did not provide me with a full copy of the transcripts from the Court until 11 May 2015'.
Delay in obtaining transcript is not a sufficient explanation. It should not have been necessary to obtain the transcript before filing an appeal notice, particularly where Mr Hasanov had previously filed affidavits in support of his various applications. While not ideal, it is always possible for an appeal notice to be filed within time and the grounds amended when the transcript is received: Grant v Mansom [2013] WADC 53 [24] - [25]. I am not satisfied that it was necessary to await the transcript before filing a notice of appeal.
I note that on the application to obtain the transcript (annexure JSM‑2 to Mr McDonald's affidavit) which is a standard form, it is stated that the fee to obtain the transcript must be paid upon lodgment and transcript will take approximately 7 working days to be transcribed. It appears that payment of the fee to obtain the transcript was not made, or did not 'come through' until 29 April 2015 (annexure JSM‑3 to Mr McDonald's affidavit). The solicitors for Coventry requested further details from Mr Hasanov's solicitors about this on 14 July 2015. A response was not received from Mr Hasanov's solicitors until 9 September 2015 (annexure KO‑1 to the affidavit of Kate O'Brien sworn 9 September 2015). The explanation provided by way of email was that the credit card provided by the solicitor for Mr Hasanov (who appeared as counsel in this matter) for payment of the fees on 29 April 2015 expired on 30 April 2015, that during the first week in May he was contacted by the court and he provided details of the replacement card to the court shortly after this time. I agree with the submissions of counsel for Coventry, that the earlier delay of almost three months between when the transcript was requested on 2 February 2015 and 29 April 2015 has really not been explained.
In any event, the most relevant transcript which Mr Hasanov's solicitors required was the transcript from 20 December 2013 containing Magistrate Malone's reasons. On the evidence before me (annexure JSM‑3 to Mr McDonald's affidavit) that transcript along with the transcript of the hearing of 28 February 2014 was received on 29 April 2015, while it was only the transcript from the other hearing of 9 May 2014 which was not received until 11 May 2015.
In all of the circumstances, I find that Mr Hasanov has not adequately explained the delay in bringing this appeal.
The prospects of success of the appeal
An appeal from a decision of a magistrate to this court is by way of a rehearing. An appellate court hearing an appeal by way of a re‑hearing, can exercise its appellate powers only if satisfied there was some legal, factual, or discretionary error on the part of the primary decision maker: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 203.
The fact that Mr Hasanov may be disappointed with the result does not mean that this court on appeal can intervene. Mr Hasanov must demonstrate that there has been some legal or factual error by the magistrate which falls to be corrected and entitles him to the order or relief that he seeks. The grounds of appeal are a critical part of this process: Avsar v Binning [2009] WASCA 219 at [37], Owen J (Miller and Newnes JJA concurring).
The grounds of appeal are:
1.The Magistrate erred in law and in fact in failing to find that the Deed of Settlement and Release was amended by the parties to amend the provisions that the Appellant consented to judgment being entered for $68,674.70 in the event that the Appellant's payment was more than 7 days late, with a provision that as long as the total amount of $13,000 was paid within the time frame, no more monies were payable.
2.The Magistrate erred in law in failing to provide sufficient reasons for concluding that the Deed of Settlement and Release was not amended by the conduct of the parties, and their amendment to the Deed of Settlement and Release, prior to entering into the Deed of Settlement and Release.
3.The Magistrate erred in law and in fact in not taking into account the Appellant's evidence of the circumstances surrounding the amendment.
4.The Magistrate erred in law and in fact by failing to find that the Deed of Settlement and Release should be construed against the party that drafted it, and who added in the amendment.
5.The Magistrate erred in law and in fact in failing to find that the Respondent engaged in unconscionable conduct in the way it encouraged the Appellant to attend its premises and execute the amended Deed of Settlement and Release, and took advantage of the fact that English was the Appellant's second language.
6.The Magistrate erred in law and in fact in failing to take into account the representations made by the Respondent to the Appellant that induced the Appellant to execute the Deed of Settlement and Release.
7.The Magistrate erred in law and in fact in not finding that the representations made to the Appellant by the Respondent prior to execution of the Deed of Settlement and Release, estop the Respondent from seeking and obtaining judgment against the Appellant for $55,674.70.
Grounds 1 to 4 – the construction of the deed
It is convenient to deal with the first four grounds together, and they were grouped together in the submissions made by counsel for Mr Hasanov.
The argument concerning the Notice of Appeal grounds 1 to 4 is that the handwritten cl 5 of item 4 of the Schedule to the Deed effected an amendment which overrode the other clauses, or gave rise to an ambiguity or inconsistency with those other clauses, and thus the magistrate erred in law and in fact in not taking into account Mr Hasanov's evidence of the circumstances surrounding the amendment.
The problem with these submissions are that they proceed on the basis that in construing the Deed:
(a)evidence from Mr Hasanov about what he understood or intended by cl 5 was admissible; and
(b)evidence from Mr Hasanov as to the surrounding circumstances of the 'amendment' of the Deed by cl 5 was admissible.
The role of the court in construing a written contract is to give effect to the common intention of the parties. The common intention of the parties is to be ascertained objectively. That is, the meaning of the terms of a contract in writing is to be determined by what a reasonable person would have understood them to mean: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165. The subjective intention or actual understanding of the parties as to their contractual rights and liabilities are irrelevant in the construction exercise: Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2012] WASCA 216; (2012) 45 WAR 29 (Hancock Prospecting) [9], [75].
Evidence of surrounding circumstances is only admissible to assist in the interpretation of a contract if the language is ambiguous or susceptible of more than one meaning. It is not admissible to contradict the language of the contract when it has a plain meaning. This is referred to as the Codelfa 'true rule': Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, 352; see also Western Export Services Inc v Jireh International Pty Ltd (2011) 282 ALR 604; Hancock Prospecting [9], [74] ‑ [80]; Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [2014] WASCA 164 [33] ‑ [45] (Technomin); and KWS Capital Pty Ltd v Love [2015] WASCA 237 [17].
The practical limitation flowing from the Codelfa true rule is that surrounding circumstances cannot be relied on to give rise to an ambiguity that does not otherwise emerge from a consideration of the text of the document as a whole, including whatever can be gleaned from that source as to the purpose or object of the contract: Hancock Prospecting [76]. This has been referred to as the 'gateway' requirement: Technomin.
The fact that adversaries can formulate and advance materially different constructions of the language of a contract does not itself satisfy the gateway requirement. Having regard to the language of the contract as a whole and what can be gleaned from that source as to the contractual purpose, competing constructions must be reasonably arguable: Technomin [74].
If the gateway requirement is met, the next issue is the scope of the 'surrounding circumstances' for the purpose of construction. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties. Prior negotiations which tend to establish objective background facts known to both parties and the subject matter of the contract are admissible. Evidence of statements and actions of the parties which are reflective of their actual intentions and expectations are not: Codelfa; Hancock Prospecting [80].
Following this true rule of construction, evidence about what Mr Hasanov believed or understood about the terms of the Deed, or the terms of the contract which he intended or hoped to make, was inadmissible and could not be taken into account.
The construction of the terms of item 4 in the Schedule to the Deed had to be done objectively, which as I have noted above is to be determined by what a reasonable person would have understood them to mean. I do not consider that the construction of cl 5 relied on by Mr Hasanov, namely that cl 5 amended cl 2 'with a provision that as long as the total amount was paid within the time frame, no more monies were payable' (appeal ground 1) is reasonably arguable, or that there is an ambiguity raised by cl 5.
I do not consider that the magistrate made any error of law or fact in this regard.
There were further submissions made by counsel for Mr Hasanov, both in writing and orally, which went beyond what, in my view, is set out in the appeal grounds 1 to 4 and which, for the sake of completeness, I should address.
In written submissions under the heading 'The prospect of the Applicant succeeding in the Appeal' it was submitted that natural justice had not been followed at the hearing before Magistrate Malone, his Honour had 'erred in finding the Applicant was late in his August 2013 payment', his Honour had erred in 'drawing the incorrect inference' and had erred in finding the Deed was 'a valid deed at law' (par 19 of the written submissions).
The submission that natural justice had not been followed was based on the transcript from the hearing of 20 December 2013 and the very brief oral submissions which had been made by the solicitor for Mr Hasanov during the hearing. However, the solicitor clearly relied upon the written submissions which had been filed and she had every opportunity to make further oral submissions if she wished. There was no denial of natural justice.
There is no basis for the submission that the learned magistrate erred in finding that Mr Hasanov was late in making the August payment. In the written submissions on the application before me (par 29) reference was made to Mr Hasanov's affidavit of 1 November 2013 where he stated that 'on 17 July 2013, I paid the sum of $2,000.00. It was and remains my belief that I had paid the additional $1,000.00 in advance for the following month and the next payment would be due on 17 September 2013'. It is submitted that this was a critical assertion and a proper inquiry should have been made. However, like the assertions relating to the construction of cl 5, evidence of Mr Hasanov's belief is not admissible and, in any event, it is contrary to both:
(a)the clear written payment dates set out in cl 1 of item 4 of the Schedule to the Deed; and
(b)Mr Hasanov's demonstrated understanding that a payment was due in August, and his statement to Magistrate Boon that he was late in making it, at the hearing of 18 October 2013 (see [19] above).
In relation to the drawing of an incorrect inference, in the written submissions par 34 this relates to the part of the learned magistrate's reasons where he stated 'I recognize readily that it always seems awkward when somebody is looking for a compromise of $13,000 and they find themselves having submitted to a judgment for a much larger amount, but that's exactly the situation that the deed contemplated'. It is not clear what inference is referred to. The written submissions which follow (par 35 ‑ 38) proceed on the basis that Coventry should have contacted Mr Hasanov's solicitor or asked him to take the Deed to see his solicitor, that Mr Hasanov's background and English should have been taken into account and 'an inquiry should have been made why [Coventry] did not ask [Mr Hasanov] to take the document to see his solicitor because there is clear imbalance of power between the parties'. These submissions appear to relate more to appeal ground 5, which I address below.
The submission that the learned magistrate erred in finding the Deed was a valid deed at law has no basis, particularly in circumstances where, both before the magistrate and in the affidavits filed in this court in support of the application for an extension of time, Mr Hasanov has relied upon the Deed. In his words, in his affidavit sworn 9 June 2015 par 12:
On 17 July 2013, I settled both Magistrates Court claims by entering into a Deed of Settlement and Release with the Respondent. Attached and marked 'MH 1' is a copy of the executed Deed of Settlement and Release dated 17 July 2013.
Finally, what counsel for Mr Hasanov submitted orally during the hearing was that Mr Hasanov sought rectification of the Deed. A claim for rectification is not within the Magistrate's Court's jurisdiction: The Lunching Pad Pty Ltd v Minister for Culture and the Arts [2001] WASC 299.
There is, in my view no merit in any of Grounds 1 to 4.
Ground 5 – unconscionable conduct
The only mention of unconscionable conduct in the hearing before Magistrate Malone, was set out in the written submissions filed on Mr Hasanov's behalf as follows:
15.Any attempt by the Claimant to extract more money than was agreed is unconscionable.
At the hearing before me, the submissions made related more to the imbalance of power between the parties, because of the fact that English is Mr Hasanov's second language and that Mr Hasanov signed the Deed without legal advice. As these matters were also raised in the written submissions before the magistrate, and I gave each of the parties the opportunity to file further written submissions on this aspect of the case, I will address the allegation in appeal ground 5 of unconscionable conduct.
The legal meaning of 'unconscionable' is very different from the way the word is used in every day speech as a method of expressing disapproval of someone else's behaviour: see ACCC v CG Berbatis Holdings Pty Ltd (2003) 214 CLR 51 [5] to [14] (Gleeson CJ); Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10; (2010) 41 WAR 353 [219], [228] (Murphy J).
As Spigelman CJ in Attorney-General (NSW) v World Best Holdings Ltd (2005) 63 NSWLR 557 [120] said:
… Unconscionability is a well-established but narrow principle in equitable doctrine. It has been applied over the centuries with considerable restraint and in a manner which is consistent with the maintenance of the basic principles of freedom of contract. It is not a principle of what 'fairness' or 'justice' or 'good conscience' requires in the particular circumstances of the case …
The equitable doctrine of unconscionable conduct applies 'whenever one party by reason of some condition [or] circumstance is placed at a special disadvantage vis-a-vis another and unfair or unconscientious advantage is then taken of the opportunity thereby created': Commercial Bank of Australia v Amadio [1983] HCA 14; (1983) 151 CLR 447, 462; Permanent Mortgages Pty Ltd v Vandenbergh [219] ‑ [220].
The 'special disadvantage' must be one which seriously affects the ability of the innocent party to make a judgment as to his own best interest: Permanent Mortgages Pty Ltd v Vandenbergh [224].
The special disadvantage will be sufficiently evident to the other party if the other party knows facts which would raise the possibility of the special disadvantage in the mind of a reasonable person: Commercial Bank of Australia v Amadio (467 ‑ 468, 479); Permanent Mortgages Pty Ltd v Vandenbergh [221].
Whilst the categories of disability are not closed, the requisite special disadvantage often involves poverty, need, sickness, age, infirmity of body or mind, sex, drunkenness, illiteracy, lack of education and lack of assistance or explanation when assistance or explanation is necessary, lack of or limited comprehension of the English language, impaired intelligence, or infatuation with or emotional dependence upon another person: Permanent Mortgages Pty Ltd v Vandenbergh [231].
Absence of independent legal advice may in a given case be a circumstance of factual importance in determining whether a special disability exists: Permanent Mortgages Pty Ltd v Vandenbergh [232].
A mere difference or an inequality in the bargaining power of the parties is insufficient: Commercial Bank of Australia v Amadio (462); ACCC v C G Berbatis Holdings [11], [14], [56]; Permanent Mortgages Pty Ltd v Vandenbergh [224] ‑ [226]. The conduct of the stronger party has to be exploitative or oppressive: Permanent Mortgages Pty Ltd v Vandenbergh [230]; The Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239; (2008) 225 FLR 1 [4924].
The object of the court's equitable jurisdiction is not to protect people from the consequences of their own mistakes: Permanent Mortgages Pty Ltd v Vandenbergh [228].
In my view, appeal ground 5 which raises unconscionable conduct has no reasonable prospect of success for the following reasons.
First, encouraging Mr Hasanov to attend its premises and execute the Deed, as set out in appeal ground 5, is not sufficient to constitute unconscionable conduct. There is no evidence in the materials which were before the magistrate to the effect that Mr Hasanov was under any pressure or imperative to enter into the Deed of Settlement. He was free to either settle and sign the Deed, or not.
Secondly, the prior relationship between Coventry and Mr Hasanov was that of lessor and lessee. There is no evidence that Mr Hasanov was relatively inexperienced in business matters; to the contrary the evidence is that he operated a photography business.
Thirdly, for the reasons I have already given, I am not satisfied that Mr Hasanov had a limited grasp of English. It is clear, even on his own evidence, that he had the opportunity to read the Deed and understood the reference to $68,674.70. I find that to appreciate that as an issue in the circumstances as set out in his affidavit of 1 November 2013, he must have read and understood the content of cl 1 ‑ 4 of Item 4. From the exchanges which he had with Magistrate Boon at the hearing of 18 October 2013, he clearly understood his obligation to make timely monthly payments of $1,000 from August and he also understood that he had a grace period of only seven days if he defaulted in making a monthly payment.
In these circumstances I am not satisfied, as submitted to me on his behalf by his counsel, that Mr Hasanov did not understand the 'nuances' of the Deed.
Fourthly, Mr Hasanov was legally represented at the time, but he chose not to contact his solicitors or seek legal advice. On his own evidence, he was keen to avoid legal costs. In the words of his affidavit sworn 1 November 2013 (par 18):
Despite knowing that I have a good case, I chose to settle the matter by paying $13,000.00 as I wanted to avoid costly legal proceedings.
This evidence also establishes, in my view, that Mr Hasanov made a considered commercial decision to waive his right to counterclaim and avoid liability for the full amount of Coventry's claim against him by taking up Coventry's offer to settle the dispute for $13,000.
Finally, there is nothing in the evidence before me to the effect that the Deed contained any term that was harsh, unusual or even uncommercial. A clause in a settlement agreement which provides for payment by one party of a settlement sum by instalments and entitles the other party to judgment for the full amount of its claim if there is any default in payment is not unheard of: see Cameron v UBS AG [2000] VSCA 222; (2000) 2 VR 108 [21] ‑ [22], [28].
In all of the circumstances of Mr Hasanov's case I am not satisfied that there were any of the characteristics of vulnerability identified in Amadio and Permanent Mortgages Pty Ltd v Vandenbergh such that Mr Hasanov suffered from a 'special disadvantage' which seriously affected his ability to make a judgment as to his own best interest.
I am therefore not satisfied that he has any reasonable prospects of success in establishing that there was 'unconscionable conduct' within the legal meaning of that expression.
Grounds 6 and 7 – representations
In these two grounds of appeal Mr Hasanov seeks to raise new issues of misrepresentation or estoppel which were not raised before the magistrate.
Except in the most exceptional circumstances, it is contrary to principle to allow a party, after a case has been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to raise at the hearing when he had an opportunity to do so: Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148 [67] – [69]. In my view no exceptional circumstances arise in this case.
The prejudice to the respondent
At the time of the filing of Mr Hasanov's appeal it was almost 18 months since Coventry had obtained judgment. Upon the expiry of the time for appealing, Coventry had a vested right to retain the judgment: Reid v South West Regional College of TAFE [2015] WASCA 231 [45].
In the particular circumstances of this case, I consider that if leave to appeal is granted to Mr Hasanov, there will be prejudice to Coventry which cannot be wholly ameliorated by a costs order.
Conclusions and orders
Balancing all of the factors relevant to determining whether an extension of time should be granted, I am not satisfied that I should grant an extension of time within which to appeal in this matter.
All of the factors weigh against the grant of an extension of time. There was significant delay. Not all of the delay has been adequately explained. I do not consider that Mr Hasanov's appeal has any reasonable prospects of success. There will be prejudice to Coventry if an extension of time is granted.
The application for the extension of time within which to appeal must be refused and the appeal must be dismissed, and I will make orders accordingly.
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