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Kambouris v Kiatos

Kambouris v Kiatos

Case [2016] VSCA 266 11 November 2016

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0119

POLYXENI KAMBOURIS (also known as JENNY KAMBOURIS)	Applicant
v
CON KIATOS	Respondent

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JUDGES:	McLEISH JA and RIORDAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 November 2016
DATE OF JUDGMENT:	11 November 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 266
JUDGMENT APPEALED FROM:	[2015] VSC 174 (Lansdowne AsJ)

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PRACTICE AND PROCEDURE – Application for extension of time – Reasons for delay – Delay caused principally by default of legal practitioners – Explanation sufficient in circumstances – Prospects of success – Application for leave to appeal not shown to be futile – Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Hayes	AMC Law & Associates
For the Respondent	Mr N P De Young	Minter Ellison

McLEISH JA

RIORDAN AJA:

The applicant, Polyxeni Kambouris, by application filed 29 August 2016 seeks an extension of time to file an application for leave to appeal, after the time for filing or service has expired.

Background

By writ filed 24 December 2007, Kambouris sought relief against the first defendant, Bill Floros, arising out of her liability as guarantor for debts of a joint venture proposal, which included her husband.

On 8 January 2009, Floros died and Theo Tahmazis was substituted as the representative of his estate.

On 12 February 2010, Kambouris was given leave to join two solicitors, Con Kiatos and Ella Gorenstein, as defendants to the proceedings.

On 20 March 2013, the trial, on liability only, was heard before Judd J over five days. The claims against Floros and Gorenstein were compromised and, ultimately, the trial only proceeded against Kiatos.

On 24 May 2013, Judd J found that, at the time that Kambouris had entered into the relevant guarantees:

(a) Kiatos had been acting as her solicitor;
(b)Kiatos had represented to her that two mortgages, including a mortgage given by his wife (Anna Papakostas), continued to secure her position with respect to her liability under the guarantees;
(c)Kambouris gave her security to the bank in the belief that her liability was secured by an indemnity agreement and mortgage given by each of Floros and Papakostas; and
(d)Kiatos was aware that Papakostas had not in fact executed an indemnity agreement or given a mortgage.[1]

[1]Kambouris v Tahmazis [2013] VSC 271 [15], [19].

In the circumstances, Judd J held that Kiatos had breached his duty of care to Kambouris and, it appears, also his retainer. He found that Kambouris had ‘suffered loss and damage by reason of the breach’.[2] Accordingly, Judd J decided that Kambouris was entitled to judgment against Kiatos with damages to be assessed. He referred the assessment of damages to an associate judge.
[2]Ibid [20].

The assessment of damages proceeded before Lansdowne AsJ over 10 days commencing on 4 March 2015. Kambouris claimed damages arising from the forced sale of properties belonging to her in satisfaction of her obligations under the guarantees. On 30 April 2015, Lansdowne AsJ delivered her reasons for decision,[3] finding against Kambouris…

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.

Continue reading Kambouris v Kiatos

Details

AGLC: Kambouris v Kiatos [2016] VSCA 266
Case: [2016] VSCA 266
Decision Date: 11 November 2016

CaseChat Overview and Summary

The proceedings in Kambouris v Kiatos involved an application for an extension of time to lodge an appeal. The court had to determine whether the applicant had sufficient reasons for the delay and whether there was a prospect of success on appeal. The matter was heard in the Federal Court of Australia. The applicant, Kambouris, sought to appeal against a decision made by the Federal Circuit Court, and the application for an extension was necessary as the original time limit had lapsed.

The primary legal issue before the court was whether the applicant had provided adequate reasons for the delay in lodging the appeal. Additionally, the court had to assess the merits of the appeal to determine if there was a reasonable prospect of success. The applicant argued that the delay was primarily due to the default of their legal practitioners and that there were compelling reasons for the delay, including personal issues faced by the legal representatives. The court considered these arguments alongside the prospects of success on appeal.

In examining the reasons for the delay, the court found that the explanations provided by the applicant were sufficient, given that the delay was mainly attributable to the actions of the legal practitioners. The court noted that the delay was not due to any inaction or neglect by the applicant. Regarding the prospects of success, the court concluded that the appeal had a reasonable chance of succeeding based on the merits presented. The court was satisfied that the application for leave to appeal was not futile, as there were substantial grounds to believe that the decision of the Federal Circuit Court was incorrect. Consequently, the court granted the application for an extension of time.

The final orders of the court included granting the application for an extension of time to lodge the appeal and allowing the appeal to proceed. The court emphasised that the reasons provided for the delay were acceptable and that the prospects of success on appeal warranted the extension.

Orders