Robalino v Idameneo (No 123) Pty Limited

[2010] NSWCA 278

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Robalino v Idameneo (No 123) Pty Limited [2010] NSWCA 278

FILE NUMBER(S):
2004/184096

HEARING DATE(S):
21 October 2010

EX TEMPORE DATE:
21 October 2010

PARTIES:
Carlos Robalino (Appellant)
Idameneo (No 123) Pty Limited (Respondent)

JUDGMENT OF:
Campbell JA Macfarlan JA Young JA   

LOWER COURT JURISDICTION:
Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):
SC 4450/04

LOWER COURT JUDICIAL OFFICER:
McDougall J

LOWER COURT DATE OF DECISION:
23 September 2009

LOWER COURT MEDIUM NEUTRAL CITATION:
Idameneo (No 123) v Robalino [2009] NSWSC 969

COUNSEL:
Appellant in person
Dr R I I Harper SC  (Respondent)

SOLICITORS:
Appellant in person
Massey Bailey (Respondent)

CATCHWORDS:
Appeals- scope of appeal- notice of appeal not challenging agreed issues decided by the primary judge below- no allegation of error by primary judge- appeal fails.

LEGISLATION CITED:

CATEGORY:
Principal judgment

CASES CITED:

TEXTS CITED:

DECISION:
The appeal is dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

2004/184096

CAMPBELL JA
MACFARLAN JA
YOUNG JA

Thursday 21 October 2010

ROBALINO v IDAMENEO (NO 123) PTY LTD

Judgment

1. YOUNG JA:  (giving the first judgment at the invitation of Campbell JA).  This is an appeal by the largely unsuccessful defendant in breach of contract proceedings decided by Justice McDougall in the Equity Division of this Court.

2. The contracts upon which the present respondent sued, were made on 17 February 2001.  One identified in the proceedings as the “sale deed”, dealt with the sale of the appellant’s medical practice to the respondent.  The other, identified as the “services deed”, dealt with the respondent’s entitlement to have the appellant work in its medical practice.

3. The basic effect of the deeds was that the respondent paid to the appellant $250,000, and the appellant agreed to work for the respondent’s medical practice a minimum number of hours per week, and restricted his professional activities outside of his service with the respondent.

4. It was clear that almost $37,000 of the $250,000 was paid to the appellant’s trustee in bankruptcy before the appellant’s discharge from bankruptcy on 16 February 2001.  The balance of that sum was paid to the appellant.

5. The hearing before the primary judge took place over three days in August 2009.  Both parties were represented by counsel and solicitors.  At paragraph [16] of the judgment, the primary judge identified a series of issues which the parties’ lawyers had agreed were those which arose from the determination.

6. In summary, those issues were:  (1) Was the sale varied? - which was answered, no;  (2) Was the appellant in serious breach of the sale deed? - which was answered, yes;  (3) Had the respondent validly terminated the sale deed? - answered, yes;  (4) What damages must be paid to the respondent? - answered, $161,438.17 plus interest;  (5) Whether the respondent was entitled to an account of profits - answered, no;  (6) Whether the respondent repudiated the sale deed - answered, no;  (7) Whether the appellant was entitled to damages - answered, no.

7. The appellant, as the litigant in person, has filed an appeal as of right against the orders made against him.  We heard the appeal this morning,  the appellant appearing in person and Dr R R I Harper SC appearing for the respondent.

8. In the notice of appeal, the grounds of appeal were in summary:  (1) The appellant was a bankrupt after February 2001.  (2) The appellant was forced into the sale and services deeds without knowledge of his rights and without legal advice, as the respondent well knew.  (3) The judgment was on the grounds of credibility infected by discrimination against the appellant because of his ethnic background, forgery of documents and perjury of all witnesses.  (4)  On the material evidence of documents, the judgment was bad in law.

9. In oral submissions, the appellant also submitted that the sale deed was bad because of the fact that the recitals proved the deeds were works of fiction.  He did not in 2001 have any medical practice to sell.  However, even apart from the doctrine of estoppel by deed which was mentioned during the trial and appeal, the point has little bearing on the result of the case.

10. The appellant also orally attacked some of the findings of breach, though with respect little of what he said gave an indication of where he was saying the trial judge fell into error.  He challenged the primary judge’s acceptance of Ms Whitely’s statistical evidence of the hours which he had worked in the respondent’s practice.  He says that he trusted his legal team to point out the errors to the primary judge though he would agree that they may have not done so.

11. Before us the appellant says that Ms Whitely looked only at the hours for 2002 to 2004.  He did not assert that a doctor could carry surplus hours from one year through to another but he did say that Ms Whiteley had ignored the fact that he was entitled under the services deed to four weeks leave in every year.

12. He also put that there was an error in that, for instance, six hours thirty-eight minutes seem to have been treated as 6.38 hours rather than 6.63 hours.  I was concerned about this for a while.  But when one considers that there is a colon between the six and the thirty-eight, it is most questionable whether there really is any error in this at all.  In any event, none of this was put below and none of it appears to be sufficiently questionable as to affect the result of the case.

13. At p 132 of the Black Book there is a part of the discussion between the primary judge and counsel during submissions and the primary judge heard the then counsel for the appellant saying the information was flawed, to which his Honour said “All you put to Ms Whitely on the topic, I think, was ‘you couldn’t determine from the time of the last consultation shown on the MedTech what was the completion time of the roster’ ” to which counsel answered “Yes”.  Indeed the appellant virtually accepted before us that at the time his legal team accepted that Ms Whitely was basically accurate.  It was only after careful consideration later that the alleged error was found by him to exist.

14. The appellant presents some figures on p 105 of the Red Book which purports to show the error.  However, it is by no means clear to me if those figures properly interpreted would lead to a different result, that is that the appellant worked less than the contractual hours in the respondent’s practice.  Even if there were some arithmetical errors, it has not been shown to me that there is a real doubt that the ultimate finding that the appellant worked under the minimum contractual hours was wrong.

15. I have dealt with some of the issues that were raised orally, but if one just looked at the notice of appeal one can see that it bears no correspondence with the agreed issues decided by the primary judge.

16. This Court exists only to correct material errors in decision of lower courts.  It is imperative that when parties have a dispute and submit it to a court for determination that they place before that court all the relevant issues germane to the dispute.  Further, they are bound by the decision unless there is appealable error.

17. Again, as the respondent’s counsel reminds us in his written submissions, it is generally accepted that a party is bound on appeal by the way it has conducted the trial.  Further, no point may be taken on appeal which may have been met by evidence caused by the opposing party.

18. There is no hint below that there was any challenge to the validity of the deeds on which the respondent was suing.  Indeed at one point the appellant’s counsel agreed that there was no suggestion that the sale deed was a sham, see Black p 45.  The debate was principally on the consequences of the deeds in the events which had happened.  Indeed the appellant also had put on a cross-claim seeking damages for the respondent’s alleged breach of the deeds.

19. Thus, for these reasons and also for the additional reasons I have given with respect to the matters raised orally, Dr Robalino cannot succeed in his appeal which must be dismissed with costs.

20. It is, thus, unnecessary to consider the respondent’s submission that the bankruptcy had come to an end before the deeds were delivered, or that there is no more than what is described as bald assertion to support grounds of appeal, or that it was never put at any stage to any of the witnesses that they were not telling the truth (not that there was any basis for such a suggestion).

21. Again, it is not necessary to consider, even if the Court were to accept the appellant’s submissions in the notice of appeal, what would happen with respect to the very high barrier for the appellant to surmount with respect to the undoing of what has happened in the meantime including the payment of the money if the deeds were set aside.

22. Accordingly, I propose that the appeal be dismissed with costs.

23. CAMPBELL JA:  I agree.

24. MACFARLAN JA:  I agree also.

25. CAMPBELL JA:  The orders of the Court will, therefore, be those that were proposed by Justice Young.

    **********

LAST UPDATED:
28 October 2010