Liprini v Liprini - [2010] NSWCA 126

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Liprini v Liprini [2010] NSWCA 126

FILE NUMBER(S):
2007/266109

HEARING DATE(S):
24 May 2010

JUDGMENT DATE:
24 May 2010

EX TEMPORE DATE:
24 May 2010

PARTIES:
Dr Allan Stephen Liprini (Appellant)
Kevin Liprini (Respondent)

JUDGMENT OF:
Allsop P

LOWER COURT JURISDICTION:
Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):
2008/2468

LOWER COURT JUDICIAL OFFICER:
Nicholas J

LOWER COURT DATE OF DECISION:
10 July 2009

COUNSEL:
In Person (Appellant)
Mr M Lawson (Respondent)

SOLICITORS:
In Person (Appellant)
Redmond Hale Simpson (Respondent)

CATCHWORDS:

LEGISLATION CITED:
Uniform Civil Procedure Rules, r 13.4

CATEGORY:
Principal judgment

CASES CITED:

TEXTS CITED:

DECISION:
Appeal dismissed with costs. Orders to be entered forthwith.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

2007/266109
ALLSOP P
Monday 24 May 2010

DR ALLAN STEPHEN LIPRINI v KEVIN LIPRINI

Judgment

ALLSOP P: This is a notice of motion dated 6 May 2010 filed on 7 May 2010 seeking the dismissal of the appellant’s notice of appeal filed on 8 October 2009.
There has been filed in the registry a document entitled "Amended Grounds of Appeal". That document was filed on 17 May 2010 and is to be taken for the purposes of the motion as a part of the notice of appeal.
The matter arises directly out of two judgments of Nicholas J in the Equity Division, both of 10 July. Both were extempore reasons. The judgments concerned the attempted enforcement by the respondent to the appeal and the applicant to the motion, Mr Kevin Liprini, of consent orders made after a mediation in a matter concerning the estate of Mr Kevin Liprini’s and Dr Alan Liprini's father. The orders that Nicholas J made are annexure C to the affidavit of Michael John Sommerville and are as follows:
1.A declaration that on its true construction the effect of the orders made on 6 December 2007 that the sums for payment therein would be payable:
(a)          From the estate of the late James Natali Liprini; and
(b)          From the estate of the late Anne Mary Liprini,
and that the Defendant would be personally liable for the payment of those sums to the Plaintiff;
2.An order under Rule 54.3 of the Uniform Civil Procedure Rules that the Defendant pay to the Plaintiff the sum of $770,000.00;
3.An order that interest be paid by the Defendant to the Plailntiff from 3 January 2008 to date at the rate prescribed by section 84A of the Probate and Administration Act 1898 (NSW) in the sum of $67,500.00;
4.An order that the Defendant pay the Plaintiff’s costs of these proceedings (such costs not to include the costs of preparation for all alternative grounds for relief as set out at paragraphs 3, 4 and 5 of the Summons filed herein) on a party and party basis;
5.Each party to pay their own costs of preparation for all alternative grounds for relief as set out at paragraphs 3, 4 and 5 of the Summons filed herein;
6.            The balance of the Plaintiff’s Summons dismissed; and,
7.The Plaintiff to have liberty to apply for further consideration by Notice of Motion on 7 days’ notice in the event that the Defendant breaches or otherwise fails to comply with the above orders.
On the morning of 10 July, Dr Alan Liprini, the defendant, sought an adjournment of the hearing in order to have an opportunity to challenge the orders made by consent on 6 December 2007. His Honour refused that application in a two-page judgment of seven paragraphs which judgment was in the following terms:
“1His Honour: This morning the defendant through his counsel makes an application for an adjournment of the hearing in order to have the opportunity of challenging the orders that were made on 6 December 2007 on, as I understand it, some ground of incapacity referable to his state of health at the time the orders were made and, implicitly, during the mediation process which resulted in the orders were made. The application is opposed.
2It is relevant that the occasion for the making of the application is at the point of time at which it had been foreshadowed that I would deliver short reasons for judgment in the proceedings that were litigated before me during the course of yesterday.
3The situation is that this matter has been fixed for hearing for a very long time, the dates of yesterday and today having been allocated when the parties indicated that the matter was ready to proceed. The court file will show that the proceedings have been before either a Registrar and, certainly, myself, on a number of occasions for the purpose of case management.
4As far as I am aware there has never been any suggestion, in opposition to the plaintiff’s claim under the summons filed 23 April 2008 in proceedings 2468/08 with which I am now concerned, that a ground of defence would be based upon some want of capacity on the part of the defendant at the relevant time. Obviously enough there has been ample opportunity to raise such a challenge, with evidence to support it, in the past. As counsel for the plaintiff correctly puts, the hearing before me of the issues raised under the summons has been concluded, and submissions on behalf of each of the parties have also been completed.
5In my firm opinion, the application is one without merit in the circumstances and must inevitably be refused.
6In reaching this conclusion, I have kept in mind s 56 Civil Procedure Act which states the overriding purpose of the Act and of the rules of court. Subsection 1 provides that the overriding purpose of the Act and of the rules of court in their application to civil proceedings is to facility the just quick and cheap resolution of the rule issues in the proceedings. Subsection 2 imposes a mandatory duty on the court to give effect to that purpose which, by subs 3 is extended to the parties. It is in the following terms:
‘Any party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.’
7In my view, consistent with the obligations imposed upon the court and the parties, the application for permitting the defendant a further opportunity to raise an entirely new ground of challenge should be refused. It is just simply too late in the day to raise it. Accordingly, the application is rejected.”
The defendant below and appellant in this Court, Dr Liprini, has not paid the sum mentioned in order 2. Bankruptcy proceedings have been taken out against him in the Federal Magistrates Court but the bankruptcy proceedings are awaiting the outcome of these appeal proceedings. Mr Sommerville's affidavit, deposes to facts from which it be taken that Mr Kevin Liprini has few assets or income and is reliant upon these monies to stave off creditors.
Dr Alan Liprini contests that statement from the bar table. I offered Dr Liprini the opportunity to give evidence in addition to the affidavit he filed. He did not take that opportunity. However, I will take it that the financial position of Mr Kevin Liprini is a matter of debate for the purposes of the motion. The appeal was filed in 2009. The grounds of the appeal and of the amendment to it, do not identify any coherent basis to impugn the reasons of the primary judge or the orders that he made. In particular, they advance serious allegations about the conduct of people at the mediation but do not identify any asserted error in the exercise of His Honour's discretion to refuse the adjournment.
The amended grounds of appeal, likewise do not identify any coherent ground of appeal against either the orders or the exercise of discretion that took place by and before Nicholas J.
Two sets of written submissions have been filed. The first was filed in circumstances that I will recount in a moment on 1 February 2010. It consists of seven paragraphs in two pages and gives no assistance whatsoever to anyone seeking to understand a legal basis for complaint about the reasons of the primary judge. On 13 May 2010 another set of written submissions were filed. They bear a degree of similarity to the earlier submissions. However, they add various paragraphs. Apart from continuing with extremely serious allegations against his former legal advisors the submissions do not identify any coherent basis for attack of either the discretion of His Honour to refuse the adjournment or the orders that were made. Mr Sommerville's affidavit sets out less than satisfactory conduct of the matter.
There are some errors in Mr Sommerville's affidavit. In particular, in paragraph 5 a complaint is made about the red book in terms of not reflecting a proper appreciation of the rules. Nevertheless, paragraph 6 of his affidavit sets out a less than proper attendance to and compliance with directions by Dr Liprini. Dr Liprini's affidavit seeks to explain some aspects of those delays. If I thought that documents filed in support of the appeal revealed a reasonable and arguable point I would not have taken the course that I propose to merely by reason of the delay and failure to attend to the appeal continuously that the evidence overall reveals. However, it should be noted that the length of time that the matter has been in the Court of Appeal is not irrelevant. On a number of occasions attempts have been made to elucidate and elicit from Dr Liprini the basis of the complaints as to the orders.
What I understand to be the position from everything he has said today and from what I take from the material, is that Dr Liprini’s real complaint is that there was a fraud of some character committed upon him at the mediation. To the extent that he seeks to attack the orders of Nicholas J those matters are only relevant to the extent that His Honour might be seen to have erred in failing to give an adjournment. No grounds of appeal and no aspects of the written submissions identify any rational basis to consider that the discretion exercised by Nicholas J to refuse the adjournment in any way legally miscarried. In these circumstances, I see no basis for considering that the appeal has any real prospects of success.
In my view the submissions of Mr Lawson in relation to Uniform Civil Procedue Rules, r 13.4 are made out. I propose to dismiss the appeal. Dr Liprini says to me today that he has made repeated attempts to obtain legal assistance. There is no evidence of that except from what he has said from the bar table but I am prepared to work on that basis.
The orders dismissing the notice of appeal today will be interlocutory. If Dr Liprini is able at any point to bring forward a coherent basis to impugn the orders made by by Nicholas J and the exercise of his discretion an application can always be made to file an appeal out of time. I am not suggesting that that application would be successful but the order I propose to make is one that is interlocutory. For those reasons, pursuant to UCPR, r 13.4 I dismiss the appeal.
An order for costs is sought. There is no basis in my view to resist that order and the dismissal of the appeal will be with costs.
I order that the these orders be entered forthwith.
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LAST UPDATED:
1 June 2010