Hirotec Maintenance Pty Ltd v Wokacka Pty Ltd
[2022] ACTSC 344
•7 December 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Hirotec Maintenance Pty Ltd v Wokacka Pty Ltd |
Citation: | [2022] ACTSC 344 |
Hearing Date: | 7 December 2022 |
DecisionDate: | 7 December 2022 |
Before: | Mossop J |
Decision: | 1. The rules be dispensed with so as to permit the filing of the Notice of Appeal in the form of the Notice of Appeal lodged on 21 November 2022 no later than 14 December 2022. 2. The applicant is to pay the respondent’s costs of the application. |
Catchwords: | CIVIL LAW – PRACTICE AND PROCEDURE – Appeal – appeal from Magistrates Court – application for leave to appeal out of time – default on part of solicitor – where attempt to file was one day late – desirability of defaulting solicitor to provide frank and detailed explanation of default – no prejudice identified – appeal arguable – leave granted – applicant to pay respondent’s costs |
Legislation Cited: | Building and Construction (Security of Payment) Act 2009 (ACT), ss 15, 17 Court Procedures Rules 2006 (ACT), rr 6, 5103, 6351 Magistrates Court Act 1930 (ACT) |
Cases Cited: | Hussain & Anor v Ngep & Anor [2015] ACTSC 71 |
Parties: | Hirotec Maintenance Pty Ltd (Applicant) Wokacka Pty Ltd (Respondent) |
Representation: | Counsel D Shillington (Applicant) M Mascitti (Respondent) |
| Solicitors McNamee Legal (Applicant) Kamy Saeedi Law (Respondent) | |
File Number: | SCA 43 of 2022 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 20 November 2022 Case Title: Wokacka Pty Ltd v Hirotec Maintenance Pty Ltd Court File Number: CS 68 of 2022 |
MOSSOP J:
Introduction
This is an application for leave to file an appeal out of time. The appeal would be from the Magistrates Court.
The proceedings in the Magistrates Court are an application to recover a debt purportedly accruing to the respondent pursuant to s 17 of the Building and Construction (Security of Payment) Act 2009 (ACT) (SOP Act).
The issue to be agitated in the appeal is whether the respondent effected the service of a payment claim pursuant to s 15 of the SOP Act when it wrote a letter of demand to the applicant, asserting an earlier apparently unsuccessful attempt at service of a payment claim. The letter of demand dated 19 October 2021 demanded payment on the basis that the applicant was indebted to the respondent pursuant to ss 15 and 17 of the SOP Act.
It is not immediately clear how the argument is to be developed or how it was developed before the magistrate, however I accept that the reliance upon a payment claim annexed to a letter of demand which assumed the earlier service of the payment claim may provide an arguable basis for an appeal asserting that summary judgment should not have been entered for the plaintiff.
Application for leave
The solicitor for the applicant indicates that he had been given instructions to file the notice of appeal within the 28-day period. He had briefed counsel who had appeared in the matter below in order to settle the Notice of Appeal. He says that it was through a misunderstanding or oversight that the appeal documents were not finalised until 18 November 2022. The relevant paragraph of the affidavit was:
Effectively through oversight, and in part, misunderstanding between myself and counsel, the appeal documents were not finalised until Friday, 18 November, whereupon the Court registry advised me the 28 days had expired the day before.
On an application like this, it is highly desirable that a deponent fully discloses the facts rather than recite them by reference to a conclusion such as “effectively through oversight, and in part, misunderstanding”. In a case like this where the solicitor is asserting that a failure to file within time is not the fault of the client, the solicitor should frankly outline the circumstances in which his or her default occurred. If there has been an error, it should be confessed and confessed in detail.
The Draft Notice of Appeal which is annexed identifies the grounds of appeal as:
1. the respondent’s letter of 19 October 2021 represented that service of the payment claims was effected on 24 August 2021 and that the applicant was indebted to the respondent pursuant to s 17 of the SOP Act;
2. the respondent was estopped from relying upon the letter to establish service of the payment claim;
3. there is a genuine issue for trial.
As I have indicated, although the grounds are probably not optimally formulated and the concept of estoppel is unlikely to add anything to the statutory argument, I accept that the appeal would be arguable.
No evidence was filed by the respondent to the application. The position of the respondent was to neither consent to nor oppose the application.
Consideration
In the present case, the relevant considerations appear to be:
(a)recognition that time limits are important;
(b)identifying that there has been an explanation for the failure to file in time, namely the default on the part of the solicitor;
(c)the attempt to file was only one day after the expiry period;
(d)no relevant prejudice has been identified; and
(e)the appeal would be arguable even if it is not well articulated in the current Draft Notice of Appeal.
In this case, the extension of time was sought by reference to either the general power to dispense with the rules, or the general power within the Court Procedures Rules 2006 (ACT) in r 6351 to adjust time periods. Rule 5103, which relates to the time for filing Notices of Appeal in the Supreme Court by reference to the relevant law under which the appeal is brought, was not expressly relied upon. That was probably because of the decision in Hussain & Anor v Ngep & Anor [2015] ACTSC 71 where it was held that r 5103 did not permit an extension of time in appeals under the Magistrates Court Act 1930 (ACT) where the application was not lodged within 28 days. In the circumstances, it is not necessary to explore with precision the alternatives for an extension of time. It is safest to proceed on the basis of dispensing with the relevant rule under r 6.
In my view, it is appropriate to grant an extension of time and to require the applicant to pay the costs of the respondent to the application.
Orders
The orders of the Court are:
1. The rules be dispensed with so as to permit the filing of the Notice of Appeal in the form of the Notice of Appeal lodged on 21 November 2022 no later than 14 December 2022.
2. The applicant is to pay the respondent’s costs of the application.
| I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 3 February 2023 |
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