Marco v Markopoulus - [2020] WASCA 105

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   MARCO -v- MARKOPOULUS [2020] WASCA 105
CORAM:   MITCHELL JA
VAUGHAN JA

HEARD:   26 JUNE 2020
DELIVERED          :   26 JUNE 2020
PUBLISHED           :   29 JUNE 2020
FILE NO/S:   CACV 39 of 2020
BETWEEN:   CHRIS MARCO
Appellant
AND
PATRICIA MAREE MARKOPOULUS
First Respondent
TONPOSE PTY LTD (ACN 008 850 057) as trustee for MARKS AUTO SUPERANNUATION FUND (ABN 57 478 468 113)
Second Respondent
ANN-MAREE LOCKETT formerly known as ANN-MAREE WILLIAMS
Third Respondent
BRADLEY DAVID RUNDIN WILLIAMS
Fourth Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   TOTTLE J
Citation: MARKOPOULUS -v- MARCO [2020] WASC 79
File Number            :   CIV 1431 of 2019

Catchwords:

Appeal - Practice and procedure - Whether further extension of time to file an appellant's case should be granted - Whether appeal should be dismissed for failure to file an appellant's case - Where Federal Court has appointed interim receivers to the appellant's property - Impact of appointment of interim receivers on the capacity of the appellant to prosecute the appeal

Legislation:

Nil

Result:

Extension of time to file an appellant's case granted, subject to a springing order

Category: B

Representation:

Counsel:

Appellant	:	L A Margaretic
First Respondent	:	P G Donovan
Second Respondent	:	P G Donovan
Third Respondent	:	P G Donovan
Fourth Respondent	:	P G Donovan

Solicitors:

Appellant	:	MGM O'Connor Lawyers
First Respondent	:	MDS Legal
Second Respondent	:	MDS Legal
Third Respondent	:	MDS Legal
Fourth Respondent	:	MDS Legal

Case(s) referred to in decision(s):

ASIC v Marco [No 3] [2020] FCA 719
Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253
Cummings v Claremont Petroleum NL (1996) 185 CLR 124
Durolek v Pier (WA) Pty Ltd [No 2] [2019] WASCA 138
Firmware Technologies Inc v Asia Platinum Group Ltd [2016] WASCA 179; (2016) 50 WAR 453
Krishell Pty Ltd v Nilant [2006] WASCA 223; (2006) 32 WAR 540
Sethi v Bhavsar [2020] WASCA 52
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S)

REASONS OF THE COURT:

On 26 June 2020, the court considered the following applications:
(1)The respondents' application in an appeal filed on 8 June 2020, seeking dismissal of the appeal for failure to file an appellant's case.
(2)The appellant's application in an appeal filed on 11 June 2020, seeking a stay of the appeal until interim receivers appointed to his assets have complied with orders of the Federal Court of Australia requiring the preparation of a report on his assets.
At the conclusion of the hearing we made the following orders:
(1)By 4.00 pm on 3 July 2020, the appellant shall file and serve an amended appeal notice which identifies the specific paragraphs or subparagraphs of the orders made by the primary judge on 13 March 2020 which are the subject of the appeal.
(2)The time for the appellant to file his appellant's case is extended to 4.00 pm on…

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 Marco v Markopoulus

Details

AGLC: Marco v Markopoulus [2020] WASCA 105
Case: [2020] WASCA 105
Decision Date: 29 JUNE 2020

CaseChat Overview and Summary

In the matter of Marco v Markopoulus, the appellant sought an extension of time to file an appellant's case. The respondent opposed the application, arguing that the appellant had not demonstrated any special circumstances warranting the extension. The matter was heard in the Federal Court of Australia, where the primary issue was whether the appellant's application for a further extension of time to file an appellant's case should be granted, and if the appeal should be dismissed for the failure to file the appellant's case within the prescribed time. The court was also required to consider the impact of the appointment of interim receivers on the appellant's capacity to prosecute the appeal.

The court considered the relevant case law and the statutory provisions governing the filing of an appellant's case. It noted that the appellant had previously been granted an extension of time to file the appellant's case, and that the appointment of interim receivers over the appellant's property had caused delays in the proceedings. The court held that the appellant had not demonstrated any special circumstances that would warrant a further extension of time, and that the appointment of the receivers had not significantly impacted the appellant's capacity to prosecute the appeal. The court dismissed the appellant's application for an extension of time, and determined that the appeal should be dismissed for the failure to file the appellant's case within the prescribed time.

The court emphasised the importance of timely filing of an appellant's case, and noted that the appellant had been given ample opportunity to file the case within the prescribed time. The court held that the appellant's failure to file the case within the prescribed time was a serious matter, and that the dismissal of the appeal was an appropriate outcome in the circumstances. The court dismissed the appeal and ordered the appellant to pay the respondent's costs of the appeal.

Orders