Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd

[2013] NSWCA 35

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2013] NSWCA 35

Hearing dates:

18 - 19 February 2013

Decision date:

21 February 2013

Before:

Allsop P

Decision:

1. Dismiss the application for an extension of time in which to file and serve a notice of appeal, brought by notice of motion filed 8 November 2012.

2. Order the applicants Sam Zdrilic, Land Enviro Corp Pty Ltd, Amy Zdrilic and Amy Holdings Pty Ltd to pay the respondents' costs of the application.

3. Dismiss the notice of appeal also filed on 8 November 2012 as incompetent.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PRACTICE AND PROCEDURE - application for extension of time to file notice of appeal - importance of finality of litigation - relative advantages and disadvantages of appellate and trial courts

Legislation Cited:

Trade Practices Act 1974 (Cth)

Cases Cited:

Fox v Percy [2003] HCA 22; 214 CLR 118
State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; 73 ALJR 306
Watson v Foxman (1995) 49 NSWLR 315
Yarrabee Coal Company Pty Ltd v Lujans [2009] NSWCA 85; 53 MVR 187

Category:

Principal judgment

Parties:

Land Enviro Corp Pty Ltd (First Applicant)
Sam Zdrilic (Second Applicant)
Amy Zdrilic (Third Applicant)
Amy Holdings Pty Ltd (Fourth Applicant)

HTT Huntley Heritage Pty Ltd (First Respondent)
Robert Michael Renshall (Second Respondent)
David Hickie (Third Respondent)
Sentel Pty Ltd (Fourth Respondent)
Devubo Pty Ltd (Fifth Respondent)
Vocifa Pty Ltd (Sixth Respondent)

Representation:

In person (Applicants)
M L D Einfeld QC and A C Harding (First, Second and Fifth Respondents)
F G Lever (Third and Sixth Respondents)
In person (Applicants)
K & L Gates (First, Second and Fifth Respondents)

File Number(s):

2012/156726

 Decision under appeal 

Citation:

Land Enviro Corp Pty Limited v HTT Huntley Heritage Pty Limited [2012] NSWSC 382

Date of Decision:

2012-04-20 00:00:00

Before:

Stevenson J

File Number(s):

SC 2007/254173

Judgment

1. ALLSOP P: This is an application for an extension of time in which to file and serve a notice of appeal. On 20 April 2012 Justice Stevenson in the Equity Division dismissed a third amended statement of claim and the first and second cross claims in proceedings below.

1. The underlying proceedings are complex and go back to events in 1998. It would burden these reasons and make them inordinately long to set out the background of this litigation at length. These reasons assume a familiarity with the detailed and careful reasons of the primary judge.

1. Mr Sam Zdrilic and his company, Land Enviro Corp Pty Limited, and his wife Amy Zdrilic and her company, Amy Holdings Pty Limited, sought to set aside agreements entered into in May and August 2004 and also sought to set aside consent orders made in 2004 to dismiss proceedings which had been brought in 2001.

1. The subject matter at the root of all the complaints is land on the South Coast that was once a coal mine and is presently being developed into a golfing resort of some kind. The detail of the underlying development is unnecessary to refer to.

1. In the proceedings below, the applicants sought to have those matters set aside on the basis that they were induced into the agreements and the dismissal of the proceedings by consent by fraud or misleading or deceptive conduct. There were numerous representations pleaded, some seventeen, said to have been made by the respondents or their lawyers in reliance upon which the applicants were said to have entered into the agreements to which I have referred and to consent to the dismissal of the 2001 proceedings.

1. The claim was that Land Enviro Corp lost the opportunity to prosecute the 2001 proceedings to their conclusion, depriving it of the chance of relief in those proceedings and thus causing it to suffer the loss of an opportunity to develop the former mine site at Dapto.

1. Damages were also claimed. The details of the claims made were set out in paras [121] to [125] of the primary judge's reasons. They included declarations that the heads of agreement and the other deed entered had been rescinded by various processes. Alternatively the plaintiffs sought orders setting those agreements aside under s 87 of the then Trade Practices Act 1974 (Cth). They also sought to set aside the dismissal of the 2001 proceedings.

1. The trial proceeded for six weeks in the Equity Division. There was detailed cross-examination of the witnesses who gave evidence and it would appear voluminous documentation. The primary judge delivered a judgment of some 1,007 paragraphs in, if I may respectfully say, an apparently painstaking and careful manner.

1. Three aspects of the rejection of the claim by the primary judge should be noted. First, there was, as I have said, an apparently careful analysis of the objective evidence. In the submissions made there was no real suggestion that his Honour had failed to advert to any critical body of documentation such as to obviously or evidently flaw his reasoning.

1. Secondly, the credit and acceptability of the evidence of Mr Zdrilic was at the centre of the case. His Honour said the following at paras 138 and 139:

"[138] To a large extent the plaintiffs' claims depend on the evidence of Mr Zdrilic.

[139] Many of the representations relied on by the plaintiffs were allegedly made orally by Mr Renshall to Mr Zdrilic."

1. His Honour's conclusions about the evidence given by Mr Zdrilic can be found at paras [149] and [150]. His Honour said:

"[149] Having observed Mr Zdrilic carefully during his cross-examination, I do not believe that he gave any answer to a question that he knew to be false.

[150] However he did demonstrate an inclination to assert the improbable, and deny the obvious."

1. Both sides referred to these findings on credit. The respondents point to the lack of a ringing endorsement of Mr Zdrilic in para [150]. Mr Zdrilic points to his Honour's conclusion that, put more bluntly, he did not think Mr Zdrilic was telling him any lies. Credit, however, is more than telling lies or not. It involves the sensitive and difficult evaluative judgment of the reliability of recollection in a number of places in the reasons. The primary judge referred to the influential and perceptive judgment of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 319.

1. The complexity and subtlety of the findings of reliability are exceptionally difficult if not impossible to confidently review on appeal. This is not the place or the time to deal with Fox v Percy [2003] HCA 22; 214 CLR 118 at any length. Its principles are well known. Of course, if it can be shown that the judge has taken advantage of, or abused, his or her position in making the findings by ignoring plain and uncontested evidence contrary to the credit findings, findings on credit can be set aside. But a carefully made and evidently painstaking conclusion on credit is exceptionally difficult to gainsay.

1. Thirdly, the considerations in State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; 73 ALJR 306 are powerful in this case. In that case the High Court pointed out that it is not just the assessment of credit of witnesses, seen by the primary judge but not by the appeal court, that gives the trial judge an advantage. The trial judge also has an advantage from day by day - week by week in this case - absorbing the evidence, thinking about the case and formulating over time the proper resolution of the human dispute before him or her. No appeal court has that advantage and in examining the length of the case and the evident range of disputes here and the careful reasons of the primary judge, an appeal court would hesitate most strongly before coming to a conclusion inconsistent with the advantage of the primary judge here. I will say something in a moment about what might be thought to be some advantage of the appeal court.

1. In seeking to demonstrate that the primary judge erred, Mr Zdrilic (who represented all the applicants on the motion and who I am sure - and I do not say this with the slightest disrespect - passionately believes that he and his companies have been done a great injury) examined, as he had to, a number of the essential factual findings, in particular the legitimacy of the findings as to the representations (the seventeenth representation in particular) and the conclusions as to reliance. His written and oral submissions attacked frontally the findings of the primary judge. However, he was not able to indicate why it would be that the huge advantage of the primary judge in the assessment of credit and the totality of the evidence had miscarried. There was no self-evident crack or flaw, in my view, in the primary judge's reasons. One is left with the need to rearticulate the totality of the case based on an analysis of the whole of the evidence.

1. I am left unpersuaded that there are real or significant prospects of success in overturning the fundamental elements of the reasons. The only legal advice that was tendered was an early preliminary advice of junior counsel. Mr Zdrilic claimed and maintained privilege on all other legal advice and so there is no basis beyond the preliminary views of junior counsel upon which I could conclude from independent advice that there are good prosects of success.

1. Mr Zdrilic's impassioned submissions to me (and once again I intend not the slightest disrespect to Mr Zdrilic who, if I may say so, handled his task of argument with some aplomb) to a significant degree are the only foundation for concluding that there may be error. Of course, in a long six week trial, mistakes necessarily may occur. I do not suggest they have, but no one who has been a trial judge would see it as difficult to recognise that some mistakes can be made in a long and difficult trial.

1. But any appeal as reflected in the notice of appeal would clearly be up to one week long. This is because the appeal that is sought is one that root and branch attacked the fundamental factual findings of the primary judge.

1. I mentioned earlier a degree of advantage of the appeal court. In Yarrabee Coal Company Pty Ltd v Lujans [2009] NSWCA 85; 53 MVR 187 at [3], I referred to the potential advantage of the appeal court in receiving detailed submissions both in writing and orally from experienced counsel with the added advantage not only of the evidence before the Court but also of the reasons of the primary judge. On a special leave application some comment was made by the High Court as to whether or not that properly could be seen as an advantage. In my view it is a potential advantage but its relevance here is that that advantage reinforces the conclusion that it would require days of painstaking analysis of the evidence to illuminate any error of the primary judge if it be there. I reiterate that I have not been persuaded on the submissions that there is any such error.

1. These matters should be taken into account in circumstances where the lost opportunity said to have been the result of the dismissal of the 2001 proceedings was not the subject of any evidence as to its value. In my view looking at the careful judgment of the primary judge and assessing the submissions of the parties both written and oral, I am not persuaded that there are any reasonable prospects of success on the appeal.

1. Turning to delay, a notice of appeal was irregularly filed on 8 November 2012. The last day for filing a notice of appeal within time (after the notice of intention to appeal had been filed within time) was 27 July 2012. No point was taken by the respondents as to the form of this irregularity and the notice of motion filed on the same day for an extension of time has been taken as an appropriate substitute form for a summons for an extension of time.

1. Mr Zdrilic explains the three month delay by his inability to obtain litigation funding and the fact that without it he could not begin the case. He gave no intimation to the respondents after 27 July that he maintained a desire to appeal and that he would act upon that desire.

1. There was also some suggestion in the affidavit supporting the application that Mr Zdrilic was not well but in fairness to Mr Zdrilic I do not think that the way he put the application went further than to say that he was desperately disappointed as to the loss, found himself in a position where he thought that his work for many years had been taken away from him and that he thought he required legal assistance and funding to put the case.

1. Whilst the advice of junior counsel in April was preliminary, it was sufficient to form the basis of a notice of appeal. Mr Zdrilic says that by late October he came to the view that he could run the matter himself. Meanwhile the respondents were entitled at law to proceed in their lives and commercial lives on the basis of the finality of the judgment.

1. There was specific evidence that after 27 July some of the respondents and some third parties made financial commitments in respect of the land that would be undermined by the uncertainty of any appeal process. Further, the evidence of Mr Zdrilic implies that he and his companies and his wife's company are relevantly impecunious, for which they blame the respondents.

1. The relevant principles in relation to an extension of time have been set out in many cases and I do not propose to refer to them in any detail. It suffices to say that the finality of litigation is a fundamental consideration. Times for appeal are not guidelines or vague indications of what ought to be happening. They are precise for a very good reason. Litigation, as I have said on a number of occasions in a somewhat different context, is a costly, stressful but at times necessary evil. People's disputes have to be resolved. Sometimes they are able to resolve them consensually. The Courts provide, as an Act of government, a venue and a service to resolve disputes. But once they are resolved, once the controversy is quelled, there is a deep public policy in matters being at an end. That is the purpose of the time for appeal and the importance of that finality should never be forgotten.

1. The Court is able, however, to extend time in appropriate circumstances. Here, looking at the matter objectively, there is a delay of three months which has been knowingly allowed to occur with knowledge of the grounds of appeal available, with no notice to the respondents of a possible appeal, with specific matters of prejudice, in circumstances of an appeal that has not been shown to have reasonable or significant prospects of success. It would be an appeal that would in all likelihood last up to a week, involving a review of credit and detailed documentation in a six week trial and the review of detailed factual findings apparently carefully made by a meticulous trial judge, about events that took place nine to fifteen years ago with no evidence of damage. In my view, notwithstanding the strength of Mr Zdrilic's views, I would conclude that it would be unjust to allow the extension.

1. Mr Zdrilic and his wife are otherwise unrepresented. The rules provide for a review of this decision, and Mr Zdrilic can consult the rules and if necessary speak to the registrar about that process. But for the above reasons the orders that I will make are:

1. Dismiss the application for an extension of time in which to file and serve a notice of appeal, brought by a notice of motion filed 8 November 2012.

2. Order the applicants Sam Zdrilic, Land Enviro Corp Pty Limited, Amy Zdrilic and Amy Holdings Pty Limited to pay the respondents' costs of the application.

3. Dismiss the notice of appeal also filed on 8 November 2012 as incompetent.

Decision last updated: 26 February 2013