Paschalidis v Shamsizadeh - [2017] NSWSC 1186

Supreme Court

New South Wales

Medium Neutral Citation: Paschalidis v Shamsizadeh [2017] NSWSC 1186
Hearing dates: 9 June 2017
Date of orders: 19 January 2018
Decision date: 19 January 2018
Jurisdiction: Common Law
Before: Lonergan J
Decision:
(1) Leave to appeal out of time is refused.
(2) Summons dismissed.
(3) The appellant is to pay the respondent’s costs.

Catchwords: CIVIL PROCEDURE – appeal from Local Court – application for leave to appeal out of time – delay – no fairly arguable case
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) rr 50.3, 50.12
Cases Cited: Jingalong Pty Ltd v Todd [2014] NSWCA 330
John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344; [2004] NSWCA 324
R v Birks (1990) 19 NSWLR 677
Category: Principal judgment
Parties: Thomas Paschalidis (Appellant)
Ibrahim Shamsizadeh (Respondent)
Representation:
Counsel:
Appellant (self-represented)
S Cairns (Respondent)
Solicitors:
Appellant (self-represented)
Burston Cole & Associates (Respondent)

File Number(s): 2016/212171
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Local Court

Jurisdiction:

Civil

Date of Decision:

9 May 2016

Before:

Keady LCM

File Number(s):

2015/114351; 2015/119099

Judgment

Mr Paschalidis, the appellant, has filed a summons seeking leave to appeal from the decision of Magistrate Keady of 9 May 2016. The summons was filed out of time on 13 July 2016. For the reasons that follow I refuse to grant leave to proceed with the appeal out of time because to grant such leave would be futile given the conclusions I have reached about the merits of the appeal.
The proceedings in the Local Court involved two parallel claims by Mr Paschalidis and Mr Shamsizadeh arising out of an oral agreement for the sale of a business at premises in Fairfield. The business had been operated by Mr Paschalidis for a period and was in the nature of a juice shop called “The Juice Stop”.
In February 2015, it was agreed that Mr Shamsizadeh was to purchase the business from Mr Paschalidis for a sum of $25,000. Mr Paschalidis asserts that the agreement was for him to vacate the business premises, thus allowing Mr Shamsizadeh to take up his own independent lease with the landlord, as well as to transfer certain equipment to Mr Shamsizadeh. Mr Paschalidis denied he made any representation at all about what goods could be sold at the business premises.
On the other hand, Mr Shamsizadeh asserted that Mr Paschalidis agreed to assign or transfer his lease to Mr Shamsizadeh and that he could “sell everything” from the business premises including ice cream, hot food, coffee, tea, popcorn, confectionary and snacks.
Mr Shamsizadeh began trading from the premises but was advised by a representative of the landlord that he was not permitted to sell chips, chewing gum or coffee from the premises. Mr Shamsizadeh did not want the business on that basis and so returned the keys, restored the business premises, and left.
By this stage, Mr Shamsizadeh had already paid to Mr Paschalidis $15,000, leaving $10,000 outstanding to Mr Paschalidis.

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 Paschalidis v Shamsizadeh

Details

AGLC: Paschalidis v Shamsizadeh [2017] NSWSC 1186
Case: [2017] NSWSC 1186
Decision Date: 19 January 2018

CaseChat Overview and Summary

The appeal in Paschalidis v Shamsizadeh was brought before the Local Court of New South Wales. The dispute involved a claim for damages following a car accident. The applicant sought to appeal the Local Court's decision after the deadline for such an appeal had passed. The primary issue before the court was whether the applicant had provided a sufficient explanation for the delay in filing the appeal and whether the appeal had a fairly arguable case.

The court considered the applicant's reasons for the delay and whether there were any exceptional circumstances that warranted permitting the late filing. The applicant argued that the delay was due to an oversight and that the appeal had a strong basis. However, the court found that the explanation provided was insufficient and that the appeal did not present a fairly arguable case. The court held that the delay was not adequately justified and that exceptional circumstances did not exist to warrant an extension of time. Consequently, the application for leave to appeal out of time was dismissed.

The court's decision was based on the balance between the applicant's need to provide a reasonable explanation for the delay and the court's duty to uphold the integrity of the legal process. The court concluded that the applicant had not met the required standard to permit an out-of-time appeal. The orders of the court were that the application for leave to appeal out of time was dismissed, and no further appeal could be filed beyond the prescribed period.

Orders