Mendonca v Chan and Naylor (Parramatta) Pty Ltd

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Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Mendonca v Chan & Naylor (Parramatta) Pty Ltd [2016] NSWCA 246
Hearing dates:1 September 2016
Decision date: 01 September 2016
Before: Meagher JA at [1], [18], [20] and [22];
Leeming JA at [2] and [21]
Decision:

1. Summons filed 8 July 2016 dismissed.

 

2. Notice of motion filed 8 August 2016 dismissed.

 

3. Application of Mr Gunning for costs dismissed.

 4. Applicant to pay the respondent’s costs on the ordinary basis.
Catchwords: APPLICATION FOR LEAVE TO APPEAL – extension of time – applicant unsuccessful as plaintiff in District Court seeking to recover bonuses from former employer – applicant then sued his barrister and solicitor seeking orders that they pay the costs ordered against him – those proceedings dismissed – leave to appeal from those proceedings refused – where premise of those proceedings was correctness of original District Court decision – applicant seeks extension of time, two years later, to appeal against original decision – where success on appeal would give rise to inconsistent judgments – whether sufficiently arguable proposed grounds of appeal demonstrated – leave to appeal refused
Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336
Degmam Pty Ltd (in liq) v Wright (No 2) [1983] 2 NSWLR 354
Doppstadt Australia Pty Ltd v Lovick & Son Development Pty Ltd [2014] NSWCA 158
Mendonca v Chan & Naylor (Parramatta) Pty Ltd [2014] FCCA 1042
Mendonca v Chan & Naylor (Parramatta) Pty Ltd as Trustee for Chan & Naylor (Parramatta) Trust (District Court (NSW), 6 November 2015, unrep)
Category:Principal judgment
Parties: Gerard Mendonca (Applicant)
Chan & Naylor (Parramatta) Pty Ltd (Respondent)
Representation:

Counsel:
Applicant in person
E W Young (Respondent)

  Solicitors:
Swaab Attorneys (Respondent)
File Number(s):2016/207326
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Civil
Date of Decision:
12 and 27 June 2014
Before:
Balla DCJ
File Number(s):
2012/200753

ex tempore Judgment

  1. MEAGHER JA: I will ask Leeming JA to deliver the first judgment.

  2. LEEMING JA: Mr Gerard Mendonca seeks a substantial extension of time to appeal from two judgments of the District Court, given on 12 June and 27 June 2014. His application for leave to appeal was filed more than two years later, on 8 July 2016. It should be said at the outset that Mr Mendonca is unrepresented in this Court, although he was represented by a solicitor and barrister in the proceedings in 2014.

  3. In 2006, the respondent, Chan & Naylor (Parramatta) Pty Ltd, employed Mr Mendonca as an accountant in its business of providing accounting, tax and wealth advice to clients. He was dismissed in August 2012. In that year, Mr Mendonca sued his former employer, claiming that it had failed to pay him all of the performance bonuses to which he was entitled in the six previous years. Those bonuses appear to have amounted to more than $100,000 (before tax). By a reserved judgment given on 12 June 2014 following a hearing lasting…

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Details
Case
[2016] NSWCA 246
Decision Date

CaseChat Overview and Summary

The applicant, Mr Mendonca, sought leave to appeal against an original District Court decision that dismissed his claim for recovery of bonuses from his former employer. Following that unsuccessful claim, Mr Mendonca had also sued his barrister and solicitor, alleging they should be liable for the costs ordered against him in the original proceedings. Those subsequent proceedings were also dismissed, and an application for leave to appeal from that dismissal was refused. The present application sought an extension of time, some two years after the original District Court decision, to appeal that original decision.

The central legal issue before the Court of Appeal was whether Mr Mendonca had demonstrated sufficiently arguable grounds of appeal to warrant granting an extension of time. The Court was required to consider whether the premise of Mr Mendonca's proposed appeal, which was the correctness of the original District Court decision, could be sustained, particularly given the subsequent dismissal of his claims against his legal representatives. A further consideration was the potential for inconsistent judgments if leave to appeal were granted at this late stage.

The Court reasoned that granting an extension of time to appeal the original District Court decision would create an unacceptable risk of inconsistent judgments, given that the applicant's subsequent proceedings against his legal representatives were premised on the correctness of that original decision. The Court found that the proposed grounds of appeal were not sufficiently arguable to justify the significant delay and the potential for conflicting outcomes. Consequently, the application for leave to appeal was refused. The summons and notice of motion were dismissed, and the applicant was ordered to pay the respondents' costs.

Orders

Orders of the court

1. Summons filed 8 July 2016 dismissed.

2. Notice of motion filed 8 August 2016 dismissed.

3. Application of Mr Gunning for costs dismissed.

4. Applicant to pay the respondent’s costs on the ordinary basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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