Kirley v Joldale Pty Ltd
[2015] QDC 189
•31 July 2015
DISTRICT COURT OF QUEENSLAND
CITATION:
Kirley & Anor v Joldale Pty Ltd [2015] QDC 189
PARTIES:
SUSAN JANE KIRLEY
(first applicant)and
LEIGH WILLIAM KIRLEY
(second applicant)v
JOLDALE PTY LTD (TRADING AS BRIAN HEADLEY MOTORS ABN 28 011 069 702)
(respondent)FILE NO:
1520 of 2015
DIVISION:
Civil
PROCEEDING:
Application
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
31 July 2015
DELIVERED AT:
Brisbane
HEARING DATE:
8 May 2015
JUDGE:
Reid DCJ
ORDER:
1. Application to extend time in which to file notice of appeal dismissed.
2. Applicants to pay respondent’s costs of the application (including any costs of the appeal).
CATCHWORDS:
Application to extend time to file notice of appeal against summary judgment – where appellants not aware of timeframe in which to appeal – where applicants delayed in seeking advice to appeal – unsatisfactory explanation for delay – where costs incurred by reason of delay in appeal proceedings are unlikely to be fully recovered – where applicants induced by respondent to believe the judgment would not be challenged – consideration of merits of appeal – consideration of fairness
COUNSEL: C. J. Crawford for applicants
P. Somers for the respondentSOLICITORS: Smith Leonard Fahey Lawyers for the applicants
Bennett and Philp Lawyers for the respondent
Introduction
On 15 April 2015 the applicants filed a notice of appeal against a decision of a learned Magistrate made on 5 August 2014. The Magistrate had on that day given judgment for the respondent, the plaintiff in the original proceedings, on its application for summary judgment. The applicants also filed an application for an extension of time in which to appeal that decision pursuant to rr 748 and 785(1) of the Uniform Civil Procedure Rules1999 (Qld) (UCPR).
The respondent company conducted a used car business. In April 2013 the applicants approached the business wishing to purchase two cars, a Commodore and VW Transporter, and to trade in a Nissan motor vehicle owned by them. That Nissan was subject to a finance arrangement.
The respondent, on behalf of the applicants, initially applied for finance to Capital Finance. When that application was rejected an application was made to another financier, Fox Finance. Application forms originally completed by a director of the respondent to support the application to Capital Finance were forwarded by the respondent to Fox Finance.
Initially it seems Fox Finance was happy to finance the applicants’ purchase of the motor vehicles from the respondent. During a phone call of 15 April 2013 the applicants were told finance had been approved. The applicants completed contract of purchase forms with respect to the Commodore and VW, left the trade-in vehicle with the respondent and took possession of the two vehicles they intended to purchase.
Some days later Fox Finance raised with the applicants issues about the application that had been submitted.
There is some dispute about events surrounding the application for finance to Fox Finance and the applicants’ conduct immediately after, to which I will return.
The upshot however is that:
1. The applicants have retained possession of both vehicles but have to date paid no money to either the respondent or to Fox Finance. They attest that money has been banked by them into a separate account to cover the monthly payments that they expected to incur pursuant to the finance arrangement with Fox Finance which they say had been approved.
2. The respondent has lost possession of both vehicles and has received nothing from either the applicants or from Fox Finance. It did of course receive the trade-in vehicle but it is agreed it paid out to the previous financier of the Nissan the sum of $23,479.70, being the agreed trade-in value of that vehicle.
Magistrates Court Proceedings
The respondent, on 25 June 2013 instituted proceedings against the applicants in the Magistrates Court, seeking payment of $67,980 being the agreed purchase price of the two vehicles together with interest and costs on an indemnity basis.
In its Statement of Claim the respondent alleges that the applicants, on 15 April 2013, entered into contracts with it to purchase the two vehicles for that total sum of $67,980 after taking into account the trade-in of their Nissan. It alleges that the applicants have not paid any of the money due to it. The respondent also alleges that the applicants had refused to provide to it “the outstanding documentation required to enable (it) to arrange finance arrangements on the (applicants’) behalf.”
In their amended Entry of Appearance and Defence filed 14 November 2013, the applicants:
1. Do not admit the existence of the contracts to purchase the two motor vehicles, but, curiously, then say they remember signing such contracts but were not provided with copies of them.
2. Admit they took possession of both vehicles on 15 April 2013.
3. Allege:
(a) they “provided all documentations to the (respondent) to arrange finance on the (applicants’) behalf.”
(b) they spoke on the phone on 15 April with a representative of Fox Finance, in the presence of a sales person employed by the respondent, “where the representative of Fox Finance explained the finance agreements”.
(c) that at no stage did anyone from Fox Finance state that finance was not approved for the vehicles and, at the end of the conversation, the applicants “were asked to sign various documents (including but not limited to the contracts, mortgage agreements and documents to effect the trade-in…)” of the Nissan to the respondent.
4. Deny that the sum of $67,980, being the total purchase price of the two vehicles, is due and owing “because under signed mortgage documents the (applicants) were required to pay the sum of $844.89 per month for the Commodore and the sum of $721.68 for the Volkswagen”.
5. Allege they have “executed documents to allow the (respondent) and its financier to direct debit these sums from the (applicants) nominated bank account”.
The applicants also counterclaimed against the respondent for damages under the Competition and Consumer Act 2010 (Cth). They allege the respondent’s sales person represented to them on 15 April 2013 that:
1. finance for the purchase of the two vehicles was unconditionally approved.
2. upon signing the documents they did, they not have to provide any further documentation “to (the respondent) or its financier”.
3. all they needed to do was pay monthly instalments of $844.89 and $721.68 for the two vehicles.
They also allege that on 24 April the first applicant was contacted by Fox Finance and told that finance was not in fact approved, but that Fox Finance would offer new finance terms at a much higher interest rate of 25 per cent per annum.
They allege that the conduct I have set out in the two previous paragraphs constituted misleading or deceptive conduct and was in breach of s 52 of the Australian Consumer Law because:
(a) finance had in fact not been unconditionally approved;
(b) the respondent “and its financier” requested further documents in order to approve the finance for the vehicles;
(c) “the plaintiff financier” offered new finance terms, significantly less advantageous to the applicants.
It might be thought the applicants’ pleaded case depended on an assertion that Fox Finance was the agent of the respondent such that the respondent was bound by the conduct of Fox Finance. In various parts of the pleading the applicants have referred to “the (respondent) and its financier” and, as set out in sub-paragraph (c) immediately above, refers to “the plaintiff financier”. They also alleged the respondent was engaged in misleading and deceptive conduct “by reason of the matters alleged at paras 1 and 2 of the counterclaim”. The conduct in paragraph 2 relates to conduct by a representative of Fox Finance, whilst only that in paragraph 1 of the pleading (set out in paragraph [11] above) relates to alleged representations by the employee of the respondent. Nowhere in the pleading however, do the applicants clearly allege that the respondent is or was the agent of Fox Finance. Rather the applicants allege they provided documents to the respondent “to arrange finance on the (applicants’) behalf”. In argument before me, counsel for the applicants specifically disavowed reliance on the assertion that the respondent was the agent of Fox Finance (see T1-8 before me).
In further and better particulars of the Amended Defence the applicants allege the “Fox Finance representative talked the (applicants) through the loan documents and the privacy laws referred to therein.” They allege that the “Fox Finance representative read through every document individually regarding finance for the Volkswagen” and that they then “signed each loan document as the Fox Finance representative asked if each understood the mentioned document.”
Nowhere in the amended defence or further and better particulars do the applicants allege the respondent’s representative said anything to indicate that the respondent would be bound by the conduct of Fox Finance or to indicate that the respondent was the agent of Fox Finance. They did not file any affidavit to that effect.
All that seems to have occurred is that both the applicants and the respondent acted in the belief that finance had been unconditionally approved and, consequently, the applicants were given possession of the Volkswagen and the Commodore and the respondent retained possession of the traded-in Nissan, paying out the existing loan secured against that vehicle, which was equivalent to its agreed trade in value.
No doubt the applicants expected that in due course they would have monthly payments deducted from their account by Fox Finance and the respondent in turn expected to receive full payment from Fox Finance for the purchase of the two vehicles by the applicants.
The applicants defence appears to be based on the premise that the failure of Fox Finance to pay the respondent the contract price is not something that can make them liable for any indebtedness to the respondent, despite the fact that it appears their loan had been arranged directly with Fox Finance and that they signed separate purchase contracts with the respondent obliging them to pay the full cost of both vehicles. What the respondent did, as I have indicated, was to send the application for finance to Fox Finance, to facilitate the representative of Fox Finance and the applicants talking during the phone conversation of 15 April that I have referred to, and then to forward documents signed or provided by or on behalf of the applicants to Fox Finance.
The pleadings in the Magistrates Court do not as I have said, allege agency, and as I have said, the applicants’ counsel disavowed reliance on agency. The reference in [13](b) and (c) of the Amended Defence to “the (respondent) and its financier” does not in my view constitute such an allegation. In my view, in the whole of the circumstances it is no more than a reference to the financier (Fox Finance) whom the applicant contacted to “arrange finance on the (applicants’) behalf”, to adopt the words used in [12](a) of the Amended Defence.
The assertion in the counterclaim that the respondents engaged in misleading and deceptive conduct by stating that finance was “unconditionally approved” and that the applicants “did not have to provide any further documentations” is inconsistent with the further and better particulars which assert that the respondent’s employee only said that nothing further was required of them. In any case, as I have said, there was no affidavit swearing to that fact. It seems that what the applicants in fact assert happened is that the respondent’s employee contacted Fox Finance on their behalf, sending a written application to them and that a representative of Fox Finance then spoke to them over the phone on 15 April 2013. They assert that an employee of the respondent was present during that conversation, presumably on loud speaker so each of the applicants’ and the respondent’s representative could hear what was said. It seems that on the basis of the Fox Finance employee’s representation, the applicants executed the loan documents. In such circumstances, the respondent’s employee understandably told them that nothing more was required and that they could take the two new cars. There was no affidavit material before the Magistrate to support the view that the respondent had engaged in any misrepresentations.
Each of the two contracts for purchase of the motor vehicles executed on 15 April 2013 were exhibited to an affidavit of Brian Headley filed in the Magistrates Court proceedings. They indicate that finance was to be arranged by the respondent. Clause 3 of the contract provided as follows:
(a) If the Buyer and Selling Agent agree as set out in Part 2 of the contract to buy a motor vehicle that Buyer requires Finance;
1. The Selling Agent cannot dispose of any trade-in until notification in writing is received of approval of finance application from the financier set out in Part 2 of the contract to buy a motor vehicle;
(b) …
(c) If the Buyer and Selling Agent agree that Buyer requires finance and requires the Selling Agent to obtain that finance as set out in Part 2 of the contract to buy a motor vehicle;
1. The Buyer authorises the Selling Agent to complete any documentation on behalf of the Buyer required by the credit provider or financier in the course of arranging such finance on behalf of the Buyer.
2. In the event that the Selling Agent’s application for finance on behalf of the Buyer is not approved, the Buyer shall be entitled to unconditionally avoid this contract.
I should add that nothing turns on the respondent’s subsequent disposal of the traded-in vehicle. The circumstances in which this occurred are outlined in the affidavit of Brian Headley filed in the Magistrates Court and the applicants’ counsel did not suggest before me that there was, on that account, any breach of contract by the respondent.
That affidavit of Brian Headley filed in the Magistrates Court proceedings attests to the fact that the respondent was, in this case, engaged by the applicants to seek to obtain finance on their behalf. He also says, in paragraph 27 of that affidavit, that on 16 April, after execution of the contracts and after the conversation that the applicants had with the representative of Fox Finance in the presence of one of the respondent’s employees, that Fox Finance rang his business and told one of his employees, Lindsay Galloway, that the application for finance had to be resigned because, whilst the application had said they were both “on wages” the male applicant was in fact an ABN holder. Records of the respondent attached to that affidavit indicate that a number of calls were made on 16 April between the applicants and the respondent about finance.
It seems however that the requested information was not provided because on 23 May 2013 Fox Finance sent an email to the respondent advising that the applicants had two conditional approvals for their finance but they had not supplied the required information to allow the loans to proceed. Even then it was said that “(w)e do believe that with some co-operation from the customer that we will be able to either reactivate the prior approval or obtain another approval through a different lender”. My reference to these matters does not indicate I am of the view finance had not been approved. I do not think it necessary to determine that issue.
On 2 May the respondent’s solicitors wrote seeking payment of its debt or return of the motor vehicles from the applicants. The applicants’ solicitors responded on 14 May merely denying that any money was outstanding and then stated:
“Our instructions are that there is a concluded agreement between the Parties. At no stage has our client misrepresented your client.
In the circumstances our clients will not be paying any money to your client.”
It appears to me that this was a most unhelpful letter which did not seek a solution to the applicants’ difficulties, perhaps because they did not appreciate there were difficulties. It did not acknowledge that the problem was between the applicants and Fox Finance or that unless the applicants avoided the contract, the respondent would be entitled to payment notwithstanding the dispute with the financer.
Later, on 22 May, the applicants’ solicitors again wrote stating that it was always made clear to the respondent and to Fox Finance that the male applicant was working fulltime on an ABN. The letter indicated “(w)e are currently seeking further instructions”. In subsequent correspondence the solicitors maintained that it was their clients’ obligation only to make 60 monthly instalments respectively for each of the two vehicles.
That assertion, of course, misstates the true position. It was the applicants’ obligation to pay the respondent the sums of $28,990 for the Volkswagen and $37,990 for the Commodore. The unconditional arrangement the applicants’ alleged they had with Fox Finance was for Fox Finance to pay that sum to the respondent on their behalf and for the applicants to then pay those monthly payments to Fox Finance and discharge the proposed loan by Fox Finance to the applicants.
The result, as matters have transpired is of course that the respondent has lost possession of both cars which remain with the applicants but have received nothing by way of any payment
Summary Judgment
The respondent applied for summary judgment in the Magistrates Court. Judgment was given on the day of the hearing on 5 August 2014. On 7 August, the Magistrate also made a decision regarding costs. The consequence is that the respondent was given judgment for the sum of $73,946.41 including $5,966.41 in interest against each of the applicants, who were also ordered to pay the respondent’s indemnity costs of the proceedings.
The judgment is brief. Her Honour found that the terms of the contract (and consistent with the applicants’ submissions before me) provided that the respondent was the agent for the applicants in arranging finance. She observed that “(t)here has been absolutely no attempt by the (applicants) to join Fox as a party in this proceeding.” In such circumstance, the Magistrate concluded there was no issue to be tried and gave judgment for the respondent.
Appeal Prospects
Counsel for the applicants submitted before me that the learned Magistrate erred in granting summary judgment. He submitted that r 292 UCPR requires more than a determination that the applicant has no defence to the claim. He submitted there was still a residual discretion as to whether such an order was appropriate. He submitted that although “the preconditions may very well have been met”, the Magistrate ought had exercised her discretion not to enter judgment and ought instead have ordered that Fox Finance be joined as a party because its presence was necessary for the proper determination of the matter.
This approach reflected the content of an amended notice of appeal filed by leave on the morning of the application before me.
The amended notice of appeal does not assert that the Magistrate ought to have concluded that the respondent was the agent for Fox Finance and so bound by that firm’s conduct. Rather, as I have said, it relies on the fact that her Honour erred “in the exercise of a discretion”, and that she mistook the facts including that finance was not approved when in fact it had been approved and because she failed to take into account that Fox Finance was a party who’s presence before the Court was desirable, just and convenient.
A number of matters militate against the applicants prospects on any appeal, and are against the application to extend time in which to appeal.
First, the approach contended for – namely that the matter should have been adjourned to allow Fox Finance to be joined – was not contended for at the Magistrates Court hearing by the applicants’ lawyer.
Second, as her Honour noted, the applicants had made “absolutely no attempt… to join Fox as a party in this proceeding”. Her Honour rightly said:
“the (applicants), interestingly, have taken very few steps to have this matter brought on for a trial, with the issue of the involvement of the financier to be ventilated. Instead, they simply dug their heels and said, ‘We’ve got the car. We’re not giving it back.’”
That seems to me an appropriate summary of the attitude of the applicants at that time. In my view, her Honour was entitled to conclude that the failure to join Fox Finance was due to the neglect or fault of the applicants, or their solicitors, and was not a matter for which the respondent was responsible.
In my view, whilst it is not necessary to fully decide the issue of the merits of the appeal at this stage, the applicants face significant difficulties in persuading a court that her Honour’s discretion in giving judgment miscarried in view of her justifiable conclusion about the conduct and lack of preparedness of the applicants and their solicitors in the litigation was a significant issue, which, necessarily militates against the course the applicants urge upon me.
Application to Extend Time
In order to consider the applicants’ application pursuant to r 748 of UCPR for an extension of the time in which to appeal, it is necessary to consider the course of conduct of the parties since the giving of that judgment.
Pursuant to r 748 UCPR, which has application to this appeal by reason of r 785, the appeal was to be filed within 28 days of the decision appealed from, unless otherwise ordered. The notice of appeal was required by the rule to be served on the respondent to the appeal as soon as practical after it had been filed.
Relevant considerations, which inform the discretion to extend the time for filing of the notice of appeal, include:
1. any explanation for the delay in filing the notice;
2. any action taken by the applicants;
3. whether informal notice of the appeal has been given;
4. prejudice to the respondent;
5. the merits of the appeal itself; and
6. considerations of fairness.
Perusal of the applicants’ affidavits in support of the application to extend time is illuminating. Both say that they did not understand that there was a timeframe in which to appeal. Neither however asserts they ever sought advice from their lawyers about appealing. Each asserts that until receipt of the bankruptcy proceedings they did not look at documents filed in the Magistrates Court in detail. Only then, they assert, did they realise “how serious the matter had become”.
They also assert that between July and December 2014 they were in Tolmie, a rural town in north east Victoria and then “scouting for work” in western Queensland. They assert that in both locations there was poor phone reception and internet access. They assert that after they returned to Bellara on Bribie Island in December 2014, whilst the phone service was reasonable, the internet was “extremely slow and drops out all the time”.
The difficulty with reliance on such assertions, and the submissions relying on them, is that there is no assertion at all that the applicants were ever unable to contact their solicitors or vice versa, or that they sought advice about the matter but were unable to make contact. Difficulties in communication, I am sure, could have been overcome if they had in fact arisen.
Similarly, the applicants assert they were effectively precluded from using their mobile phones between 3.30am or 4am and 8pm after they recommenced work after returning to Bribie Island in early 2014, because phones were banned on the worksite. I do not accept that can account for any lack of communication with their solicitors. I cannot envisage they were precluded from making contact with the solicitors over that time because of their work commitments and note that there is in fact, again, no assertion that they either sought or desired to do so.
At the hearing in the Magistrates Court, and subsequently, both parties were legally represented. Indeed, the applicants have been represented by a solicitor since the inception of the matter in May 2013.
The solicitors for the respondent on 11 August 2014 sent to the applicants’ solicitor, pursuant to r 807 UCPR, blank Statements of Financial Position to be completed by the applicants. These were required, by r 807(3) UCPR, to be completed and returned within 14 days. That was not done.
In fact, the statements were not returned until 2 February 2015, almost six months after the request had been sent to the applicants’ solicitor.
I shall refer to these completed Statements of Financial Position in due course. It is first appropriate to consider what occurred after the request of 11 August, and the provision of the statements on 2 February.
On 4 September 2014 the respondent’s solicitor sent to the applicants’ solicitor a costs statements pursuant to r 705 UCPR. The amount claimed was $24,729.10 and, as required, notified the applicants of their entitlements, including the requirement that if they wished to object they should do so within 21 days by filing of a notice under r 706 UCPR. It is not suggested in the material before me that any such objection was ever lodged.
On 20 October 2014 the respondent’s solicitors wrote to the applicants’ solicitors in these terms:
“To date, your client has failed to satisfy (the) judgment debt, nor provide a proposal for its satisfaction.
Accordingly, we are instructed to commence bankruptcy proceedings against your clients.”
The letter then requested notification of whether the applicants had instructed their solicitors to accept service of the bankruptcy notice and requested such confirmation by 22 October, failing which “we shall attend to serving your clients directly”.
Because there was no response to that letter the applicants’ solicitors arranged for service of the bankruptcy notice on the applicants personally. A letter of 10 December 2014 from Advanced National Services, who had been appointed to arrange service of the bankruptcy notices, indicates that each of the applicants was then residing at an address at Bellara and that a conversation with the female applicant indicated that she and the male applicant had “recently returned to the above provided address after an extended period of travel”.
On 2 February 2015, the Statements of Financial Position were provided under cover of an email from the applicants’ solicitor to the respondent’s solicitor which read:
“I have been asked to forward the enclosed statements of financial position to you for discussion with your client in a view to finalising the matter.”
Each of the statements contained a “Part 5 – Proposal for Payment.” Each of the applicants had ticked “yes” to the question “Do you have any proposal for payment or satisfaction of the debt to the enforcement creditor?”. The statements then request “What do you propose?”. Both the statements provided by the applicants’ solicitor were blank in regard to that query. Immediately on receipt of the statements, indeed only some 24 minutes after their receipt, the respondent’s solicitor wrote to the applicants’ solicitor thanking him for the statements and asking, in view of the fact that each of the applicants had asserted they had a proposal for payment on satisfaction of the debt but neither said what that proposal was, to provide details of what in fact was proposed “so I can put that to our client”.
Subsequently, on 4 February the respondent’s solicitor again wrote to the applicants’ solicitor in these terms:
“Your clients’ offer is rejected. Our client has formalised money orders now against your clients, including costs and interest. The value of these orders is well in excess of the vehicles when they were first taken by your clients. Since that time those vehicles have depreciated significantly.
If your clients do not have a proposal to pay the judgment debt and cost order in full then we are instructed to proceed with filing a creditor’s petition in respect of the unsatisfied bankruptcy notices issued.”
The letter required the provision of such a proposal by 9 February.
Presumably because no proposal, or at least one acceptable to the respondent was forthcoming the respondent’s solicitor, on 17 February, again wrote to the applicants’ solicitor inquiring whether the applicants’ solicitor had instructions to accept service of the proposed creditor’s petition and advised that otherwise they would be served personally. No response was made by the applicants or their solicitors.
Subsequently, the creditor’s petitions must have been filed and served because on 25 March 2015 the respondent’s solicitor received an email from the applicants’ solicitor enclosing, by way of service, affidavits of each of the applicants and a stamped notice of appearance for the initial hearing of the creditor’s petition.
The creditor’s petition came before the Registrar on 26 March 2015. On that date the applicants’ solicitor sought and obtained an adjournment of the matter. Although the adjournment was opposed by the respondent’s solicitor, the Registrar (of the Federal Circuit Court, I presume) gave an adjournment of one week to the applicants.
The matter returned to court on 1 April. On the morning of the hearing, the applicants filed more affidavit material relating to the Personal Property Securities Act 2009 (Qld) (PPSR) securities in the respondent’s name held over the vehicles the subject of the dispute, and to a reference in the creditor’s petition to a secured interest of the respondent against the applicants’ home. As a consequence of matters raised in the material, the respondent’s solicitors sought a further adjournment of the petition. In an affidavit before me the solicitor for the respondent indicated that this was due to an error in the creditor’s petition. Consequently, the creditor’s petition was again adjourned until 16 April. Finally, just prior to the third return date of the creditor’s petition on 16 April, the applicants’ solicitor served an affidavit attaching a draft appeal in these proceedings and a draft application seeking an extension of time for the filing of the appeal. That was the first notification to the respondent that the applicants in any way disputed the decision of the Magistrate made on 5 August 2014, more than eight months earlier.
In support of the application to extend the time in which to file the notice of appeal the applicants’ counsel submitted, in reliance on the affidavits filed in this court to similar effect:
1. that neither applicant had previously been involved in court proceedings and that they were unaware of the timeframes in respect of civil litigation and appeals. He submitted they did not understand that after judgment they had a timeframe within which to appeal and that it was not until after the respondent’s bankruptcy proceedings had been served that “they considered the matter in greater detail”;
2. that they had largely been away from urban centres since the judgment had been handed down and had difficulty staying in contact due to poor phone and internet connection; and
3. that the respondent would not be prejudiced by delay in the proceedings as the applicants had “at least $150,000 of equity in the real property owned by the applicants” and in circumstances where the respondent was also said to have lodged PPSR securities against the two relevant motor vehicles which were said to be “in good condition and are currently worth around $42,000”.
Conclusion
Ultimately I conclude in this case that the conduct of the applicants does not justify my giving an extension of time in which to appeal. In my view:
1. The applicants’ explanation of their delay in appealing is most unsatisfactory. They knew the respondent had received no payments whatsoever despite the fact that the applicants had possession of both cars. In circumstances where judgment had been given against them, they did nothing to seek advice about their rights of an appeal until it seems about mid-April 2015. They were at all times legally represented. It appears that up until that time they did not even seriously consider the merits of their case, or the position of the respondent.
2. Because they did not seek advice about appealing until well after the judgment, the respondent has incurred significant further expense from:
(a) seeking information via statements of financial position;
(b) preparing costs assessments and delivering them to the applicants, who raised no objection to the assessments;
(c) making numerous requests for information or advice from the respondent’s solicitors; and
(d) seeking to enforce the judgment debt via bankruptcy notices and a creditor’s petition.
In my view the cost of much of that would likely to be forever lost if an appeal was now allowed to proceed, even if costs orders were made and despite any security might have over the applicants’ assets or the extent of those assets. Almost inevitably there are significant costs that are never recovered even when costs orders are made, and that is especially so when proceedings in other courts are involved, as here occurred.
3. The applicants falsely induced the respondent to believe that the judgment was not to be challenged by their conduct especially in not appealing earlier, not raising issues about the cost statements, and by their ticking “yes” in the Statements of Financial Position in relation to the question about whether they had a proposal to repay the judgment debt.
That attitude would have been strengthened by their failure to notify of any intention to appeal until the time of the third return date of the creditor’s petition.
4. I have real concerns about the applicants’ prospects of any appeal because of the reasons I earlier outlined.
5. Fairness, in this case, requires dismissal of the application to extend the time in which to appeal. The applicants’ interests can be protected by instituting proceedings against Fox Finance for breach of any contract it may have had with the applicants or for damages for misrepresentations or misleading or deceptive conduct. I can see no reason why the respondent’s entitlement to payment of the sum due to it should be further delayed. It was always open to the applicants to have joined Fox Finance in the original proceedings. In circumstances where they can now institute separate proceedings against Fox Finance (or an action against their former solicitors), I see no reason to conclude the respondent’s right to recover the money to it should be further delayed.
Orders
The application for an extension of time in which to appeal is dismissed and the notice of appeal is dismissed. 1.
Subject to argument to the contrary, the applicants are to pay to the respondent costs of and incidental to this application.2.
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