Nyoni v Chee Koon Hee (No 2)

Case [2014] FCA 83

FEDERAL COURT OF AUSTRALIA

Nyoni v Chee Koon Hee (No 2) [2014] FCA 83

Citation: Nyoni v Chee Koon Hee (No 2) [2014] FCA 83
Appeal from: Nyoni v Chee Koon Hee (No 4) [2013] FCA 948
Parties: EMSON NYONI v CHEE KOON HEE, DEVESH SHETH, FRANK PECZKA, DARREN FRIEND, RAYMOND GRIFFITHS, ANDREW VAN BALLEGOOYEN, CK CHEE PTY LTD, ALLEASING PTY LTD, CHIEF EXECUTIVE OFFICER OF HEALTH WA, JILLIAN MURPHY, SHIRE OF KELLERBERRIN and THERESA BEECH
File number: WAD 382 of 2013
Judge: MCKERRACHER J
Date of judgment: 18 February 2014
Catchwords:

PRACTICE AND PROCEDURE – application for extension of time to apply for leave to appeal – application for leave to appeal – insufficient evidence to support grounds of appeal – applications refused

PRACTICE AND PROCEDURE - application for injunction restraining Supreme Court of Western Australia proceedings – no jurisdiction – application refused

COSTS – whether indemnity costs should be awarded – unreasonableness driven by ignorance and misconception – indemnity costs refused

Legislation: Federal Court Rules 2011 (Cth) rr 35.14, 40.02(a)
Cases cited: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Hamod v New South Wales (2002) 188 ALR 659
Niemann v Electronic Industries Ltd [1978] VR 431
Ninan v Valuer-General of Western Australia (No 2) [2013] FCA 1180
Nyoni v Chee Koon Hee (No 4) [2013] FCA 943
Nyoni v Chee Koon Hee [2013] FCA 1120
Rawson Finances Pty Ltd v Deputy Commissioner of Taxation (2010) 81 ATR 36
Date of hearing: 9 December 2013
Date of last submissions: 13 December 2013
Place: Perth
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 52
Counsel for the Applicant: The Applicant appeared in person
Counsel for the First, Second and Seventh Respondents: Ms J Binstead
Solicitor for the First, Second and Seventh Respondents: IRDI Legal
Counsel for the Third, Fourth and Fifth Respondents: Mr P Graham
Solicitor for the Third, Fourth and Fifth Respondents: Jarman McKenna
Counsel for the Sixth Respondent: Ms KM McNally
Solicitor for the Sixth Respondent: Clayton Utz
Counsel for the Eighth Respondent: Mr M Evans
Solicitor for the Eighth Respondent: Havilah Legal
Counsel for the Ninth, Tenth and Twelfth Respondents: Ms K McDonald
Solicitor for the Ninth, Tenth and Twelfth Respondents: State Solicitor’s Office
Counsel for the Eleventh Respondent: Mr C Maclean
Solicitor for the Eleventh Respondent: DLA Piper Australia

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 382 of 2013
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

EMSON NYONI
Appellant
AND:

CHEE KOON HEE
First Respondent

DEVESH SHETH
Second Respondent

FRANK PECZKA
Third Respondent

DARREN FRIEND
Fourth Respondent

RAYMOND GRIFFITHS
Fifth Respondent

ANDREW VAN BALLEGOOYEN
Sixth Respondent

CK CHEE PTY LTD
Seventh Respondent

ALLEASING PTY LTD
Eighth Respondent

CHIEF EXECUTIVE OFFICER OF HEALTH WA
Ninth Respondent

JILLIAN MURPHY
Tenth Respondent

SHIRE OF KELLERBERRIN
Eleventh Respondent

THERESA BEECH
Twelfth Respondent

JUDGE:

MCKERRACHER J

DATE OF ORDER:

18 FEBRUARY 2014

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The applicant’s application for an extension of time for…

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Nyoni v Chee Koon Hee (No 2) [2014] FCA 83
Case
[2014] FCA 83
Decision Date

CaseChat Overview and Summary

The case of Nyoni v Chee Koon Hee (No 2) involves an application by Emson Nyoni against multiple respondents relating to the sale of his pharmacy business and land in Kellerberrin, Western Australia. The key dispute centers around allegations of misleading and deceptive conduct, breaches of contract, and misfeasance in public office. The Federal Court of Australia was tasked with deciding several legal issues, including whether to grant an extension of time to appeal, the sufficiency of evidence to support grounds of appeal, the jurisdiction over an application for an injunction, and the appropriateness of awarding indemnity costs.

The court considered the applications for an extension of time and for leave to appeal, noting the absence of specific reasons explaining the delay and any demonstrated error on the part of the primary judge. The court emphasized that while latitude should be given to unrepresented litigants, this does not exempt them from procedural requirements. The application for an extension of time was dismissed as Mr. Nyoni failed to demonstrate that strict compliance would result in injustice, and the application for leave to appeal was dismissed due to insufficient evidence supporting the grounds. Additionally, the court refused the application for an interlocutory injunction, finding no jurisdiction over the Supreme Court of Western Australia proceedings. Finally, the court declined to award indemnity costs, concluding that the unreasonableness was driven by ignorance and misconception rather than any malicious intent.

The final orders of the court were to dismiss the application for an extension of time for leave to appeal, the application for leave to appeal, and the interlocutory application for an injunction. Emson Nyoni was ordered to pay the costs of the respondents, to be taxed if not agreed.

Orders

Orders of the court

1. The applicant’s application for an extension of time for leave to appeal is dismissed.

2. The applicant’s application for leave to appeal is dismissed.

3. The applicant’s interlocutory application for an injunction is dismissed.

4. The applicant pay the costs of the respondents, to be taxed if not agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For reasons that follow, each of the applications must be refused. BACKGROUND Mr Nyoni issued proceedings against the respondents in connection with the sale of his pharmacy business and land in Kellerberrin, rural Western Australia (Sale Contracts). The key facts on which Mr Nyoni relied to support his claim were set out in the primary judgment (Nyoni v Chee Koon Hee (No 4) [2013] FCA 948) (at [2]-[10]) as follows:2 [Mr Nyoni], a pharmacist, sold his pharmacy business, as well as the land at 92 Massingham Street, Kellerberrin, in Western Australia on which the business was carried out. He alleges that he sold the pharmacy business by a written sale agreement dated 13 March 2013 to Chee Koon Hee, the first respondent. He further alleges that after the agreement was signed the name C K Hee Pty Ltd, the seventh respondent, as trustee for the C K Hee Family Trust, was added as a purchaser without his knowledge or consent. 3 He also alleges that also on 13 March 2013 he sold the land to a “Purchaser” but that after the contract of sale was signed it was “further counter-signed by a number of other signatories identified only by illegible signatories with no names or addresses or contact details”. He alleges that apart from Devesh Sheth, the second respondent, there were other “shareholders” not disclosed to him prior to signing both agreements and that none of the other “potential purchasers could be identified by word of mouth or paper”. 4 Mr Chee Koon Hee in his affidavit sworn on 1 June 2013 in support of the application filed on his behalf and that of Devesh Sheth and C K Hee Pty Ltd annexed a copy of the contract for the sale of the land between [Mr Nyoni] as seller and the seventh respondent as trustee for the C K Hee Family Trust, S C Tan Pty Ltd (ACN 092 946 015) as trustee for the S C Tan Family Trust and Kruti Pty Ltd (ACN 117 836 183) as trustee for the D R Sheth Family Trust, as the Buyers (the land contract). He deposes that the contract was executed by the respective directors of the purchaser companies on 12 March 2013 and by [Mr Nyoni] on 13 March 2013. He also annexed a copy of the sale contract for the pharmacy business (the business contract). This copy shows both himself and C K Hee Pty Ltd, as trustee for the C K Hee Family Trust, as purchasers. 5 However, the copy of the business contract annexed to [Mr Nyoni]’s affidavit, sworn 9 August 2013, discloses only Chee Koon Hee as purchaser but is otherwise identical to the copy annexed by Chee Koon Hee. 6 I infer that the name of the company, C K Hee Pty Ltd as trustee for the C K Family Trust, was added to the copy held by Chee Koon Hee after the business contract was executed. 7 However, on 18 April 2013, two documents entitled “VARIATION OF SETTLEMENT DATE” were executed varying the settlement date under each of the land contract and the business contract, to 22 May 2013. The document relating to the land contract was executed by C K Hee Pty Ltd as trustee for the C K Hee Family Trust, S C Tan Pty Ltd as trustee for the S C Tan Family Trust and Kruti Pty Ltd as trustee for the D R Sheth Family Trust. The document was signed by the respective directors of those companies, Mr Chee Koon Hee, Mr S C Tan and Mr Devesh Sheth. 8 The document in relation to the business contract was signed by [Mr Nyoni] and by Chee Koon Hee as sole director and sole secretary of C K Hee Pty Ltd as trustee for the C K Hee Family Trust. That company in that capacity was disclosed in clear terms as the buyer. [Mr Nyoni], when asked about this said from the bar table that he must have overlooked this fact as to the identity of the nominated purchaser before he signed this document. 9 The alteration of the name of the purchaser in the business contract and the “illegible signatories” on the land contract are each alleged by [Mr Nyoni] to constitute misleading and deceptive conduct and a breach of those contracts. However, he made it clear in oral submissions that his overarching complaint was that the real and undisclosed purchaser of both the land and the pharmacy business was the Shire of Kellerberrin, the eleventh respondent. This allegation finds no support in the evidence beyond the assertion of [Mr Nyoni]. The contracts are not to that effect. 10 [Mr Nyoni] alleges that he relied upon the fact that he was selling the business to Chee Koon Hee and the land to the three companies. So much may be accepted. However, he also signed the variation of settlement date document disclosing the purchaser of the business as C K Hee Pty Ltd as trustee for the C K Hee Family Trust. This evidences an acknowledgment on his part that the business contract was to proceed to settlement with that company as purchaser. The “illegible signatories” on the land contract are, as Chee Koon Hee has deposed, the directors of each of the purchasing companies.(emphasis added)

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It is also helpful to set out, as the primary judge did (at [27]-[28]), the relief sought by Mr Nyoni in the final form of the statement of claim examined by the primary judge: 1. Respondents 1, 2, 3, 4, 5, 6, 7 and 111.1Conract of sale between Emson Nyoni (Seller) and Cee Koon Heen (buyer) dated 13 March 2013 be set aside for breach of Australian Consumer Law (ACL) ss 18 and 22 and Trade Practices Act 1974 s 52.2.In the premises pleaded in paragraphs pleads with the Court to either revoke to suspend the Notice of the Delegate dated 24 April 2013 for the Schedule 8 Poisons licence3.4.B. In the premises pleaded in paragraphs that the Court void or rescind sale agreements dated 13 March 2013. And that respondents be denied any specific performance remedy.5.6.C. Court orders Alleasing from maliciously prosecuting applicant by allowing a fair trial under the ACL requirements in the Federal Court under Unconscienable conduct and halt any proceedings by Alleasing until a fair trial, which has never happened.7.8.D Damages for conspiracy9.10.E Damages for past, present and future earnings.11.F. Costs12.13.G. Any relief the Honourable Court thinks fit.14.(Transcribed without amendment)…A.Sale Agreement for the pjarmacy business and associated buikding at 92 Massingham Street dated 13 March 2013 between Emson Nyoni and Chee Koon Hee an be set aside with orders prohibiting specific performance pursuant to s. 18 of the ACL 2010.B.Notice dated 24 April from Delegate of CEO be revoked pursuant to s. 18 of the ACL 2010 .C.All proceedings against Applicant by Alleasing Pty Ltd be be set aside or in the alternative be subjected to a proper hearing under s. 18 and s. 22 of the ACL 2010.D.A declaration that in the premises pleaded in paragraphs 6, 13, 17, 18, AND 19 above, or any one of them, Mr Peczka, and, or, Mr Friend, and, or, and or Mr Mr Raymond Griffithswas guilty of the tort of misfeasance in public office.E.Damages for misfeasance in public office in the premises pleaded in paragraphs 6, 13, 17, 18, 19 and 35 or any one of them.F.Damages pursuant to sections s. 18 of the ACL 2010 and or of the Trade Practices Act and, or, sections 77 and 79 of the FTA against the Shire for the contravention pleaded in paragraps6, 16, 17, 18, 19, 22, 28, 30, 32, 33, 35, 36, 39 and 40.above, or, any one of them.G.Damages pursuant to sections232, 233, 234, 235, 237, 242, and 245 of the ACL 2010 and sections 82 and 97 of the TPA, and, or, sections 77 and 79 of the FTA agains Mr Hee, Mr Seth, Mr Mr Peczka, Mr Friend, Mr Griffiths, Dr Van Ballegooyen, Alleasing Pty Ltd, CEO of Health WA, Ms Murphy, Shire of Kellerberrin and Ms Beech , Mr , Mr Friend, <r Peczka, and, the contraventions pleaded in paragraph s 6, 16, 17, 18, 19, 22, 28, 30, 32, 33, 35 and 36 , 39 and 40or anyone of them above.H.Damages against Respondents One, Two, Three, Four, Five, Six, Seven, Eight, Nine, Ten, Eleven and Twelve for the torts pleaded in paragraphs 6, 16, 17, 18, 19, 22, 28, 30, 32, 33, 35 and 36, 39 and 40 above, or any one of them.I.Damages for Defamation undersection 18 of the ACL 2010 or section 52 of the TPA against the Respondents One, Two, Three, Four, Five, Six, Seven, Eight, Nine, Ten Eleven and Twelve n Pragraphs 6, 16, 17, 18, 19, 22, 28, 30, 32, 33, 35, 36, 39 and 40 or any one of them.J.Damages for conspiracy against Respondents Ine, Two, Three, Four, Five, Six, Seven, Eight, Nine, Ten, Eleven and Yweve the premises pleaded in paragraphs 6, 16, 17, 18, 19, 22, 28, 30, 32, 33, 35, 36, 39 and 40 above, or anyone of them.K.Damages for loss of current and future earnings in the premises pleaded in paragraphs 6, 16, 17, 18, 19, 22, 28, 30, 32, 33, 35, 36, 39 and 40 above, or anyone of them.L.Interest.M.Any other relief as this Honourable Court thinks fit.N.Costs.(Transcribed without amendment)THE JUDGMENT

Ratio Decidendi

Legal Principle Established

There were three detailed affidavits from Mr Nyoni sworn on 7 November 2013 (this affidavit is filed in support of the application for extension of time to file a notice of appeal), 11 November 2013 (this affidavit is filed in support of the application for interlocutory injunction) and a further affidavit sworn on 28 November 2013. In the further affidavit Mr Nyoni explains that the application for leave to appeal was not filed within time explaining that he had understood the dismissal application as being a final order thus proceeding with the notice to appeal. This, of course, is a reasonably understandable error for a lay person to make. The balance of that affidavit sets out the nature of the complaints against the various respondents. CONSIDERATIONApplication for extension of time and application for leave to appeal Apart from some generalised allegations of complaint against the primary judge’s application of the law, particularly in the context of s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA), there is nothing in the affidavit in support of the grounds for extension of time explaining the delay in filing the application for an extension. There is also nothing specific to support an assertion of demonstrated error on the part of the primary judge. What the affidavit deals with in essence, albeit in an argumentative and inadmissible format, are the original complaints against the various respondents. Of course, those complaints can go no wider than the pleaded case, such that one is driven back essentially to the question of whether there is determining any basis on the ultimate form of the statement of claim on which the claim should have survived. Given the absence of any information going specifically to the question of the reasons for delay, I propose treating the application for an extension of time together with the application for leave to appeal. I accept the submissions for the various respondents that while a degree of latitude must be afforded to an unrepresented litigant, such status does not confer a license to disregard entirely the procedural requirements imposed by the Federal Court Rules 2011 (Cth) (FCR) or the substantive law. In determining the extent of latitude which is appropriate, it is clear that on a number of occasions recommendations were made to Mr Nyoni that he should obtain legal representation and yet he has declined to do so. As a consequence the litigation has resulted and will continue to result in substantial costs being incurred by the respondents as well as significant court resources being diverted in circumstances where proper legal advice could have avoided both of those outcomes. Insofar as the extension of time is concerned, Mr Nyoni has the onus of persuading the Court that in all the circumstances of the case an extension should be granted: r 35.14 FCR. A discretion to extend time is solely for the purpose of enabling justice to be done between the parties. It should only be granted in circumstances where it is demonstrated that strict compliance will work an injustice upon the applicant for an extension of time. A key consideration in that regard is the prospects an applicant will have in succeeding on an appeal.