Slaveska v Elenchevski - [2013] VSCA 283

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0071

STOJANKA SLAVESKA	Appellant
	V
DRAGON ELENCHEVSKI	Respondent

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JUDGES	WARREN CJ, NEAVE and PRIEST JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	24 September 2013
DATE OF JUDGMENT	9 October 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 283
JUDGMENT APPEALED FROM	Slaveska v Elenchevski [2012] VCC 311

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CIVIL PRACTICE AND PROCEDURE – Appeal against orders striking out proceedings for want of prosecution and under rules 23.01, 23.02 and 23.03 of the County Court Civil Procedure Rules 2008 – Application for an extension of time in order to rely on a notice of appeal against costs orders imposed below – No real prospect of success – Appellant failed to particularise damages – Appellant failed to reply to defences raised – Appellant caused inordinate delay – Appeal dismissed – Application refused.

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Appearances:	Counsel	Solicitors
For the Appellant	In person
For the Respondent	Mr A Sandbach	Flitner & Co

WARREN CJ:

I have had the benefit of reading in draft form the reasons for judgment of Neave JA. I agree with her Honour, for the reasons that she gives, that the appeal should be dismissed and the application refused.

NEAVE JA:

This is an appeal by Mrs Stojanka Slaveska (‘the appellant’) against orders of Judge Anderson[1] made on 28 March 2012, striking out proceedings initiated by her against the respondent, Dragan Elenchevski, for want of prosecution.[2]
[1][2012] VCC 311 (‘Reasons’).
[2]Reasons [41], the judge considered that the material filed by the plaintiff went nowhere near to providing a basis for her response to the defences raised.

The appellant also appeals, with leave, against a costs order made against her on 9 May 2012. When leave was granted by this Court on 14 September 2012, the orders required the appellant to file and serve a notice of appeal against the costs order by 4.00pm on 21 September 2012. Since that was not done, Mrs Slaveska also requires an extension of time in order to rely on the notice of appeal against the costs orders, which was filed on 24 September 2012.

In my opinion, both the substantive appeal and the application for an extension of time to appeal against the costs orders, should be dismissed.

Background

The background to the proceedings which the appellant initiated by Writ with a Statement of Claim filed on 13 November 2008, is carefully described in the reasons of the judge below.

The appellant’s claim arose out of a written agreement between her son Kreste Slaveski (allegedly acting as her agent) and the respondent, made on 26 March 1986, to sell her a house and land in Ohrid, Macedonia. The appellant alleges that under the agreement she was sold an area of 485 square metres enclosed by a wire fence,

that she paid the respondent a deposit of $10,000 on 26 March 1986 and that she later paid him the balance of $46,000. She travelled to Macedonia, occupied the home and replaced the wood and wire fence…

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.

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Details

Case: [2013] VSCA 283
Decision Date: 9 October 2013

CaseChat Overview and Summary

The parties in this case were Slaveska, the appellant, and Elenchevski, the respondent. The nature of the dispute was an appeal against orders that had struck out the proceedings for want of prosecution, as well as under specific rules of the County Court Civil Procedure Rules 2008. The court hearing the appeal was the County Court of Victoria.

The legal issues before the court were whether the appellant had a real prospect of success in her appeal against the costs orders, and whether she had adequately particularised her damages and replied to the defences raised. The court was also required to consider whether the appellant's delay in lodging her appeal had been inordinate. The appellant sought an extension of time to rely on a notice of appeal against the costs orders imposed in the lower court. The respondent argued that the appellant had no real prospect of success due to her failure to particularise her damages and reply to the defences raised, as well as the inordinate delay caused by the appellant.

The court found that the appellant had failed to particularise her damages and reply to the defences raised, which were both necessary steps in pursuing her appeal. The court also found that the appellant had caused inordinate delay in lodging her appeal, which was a significant factor in deciding whether to grant an extension of time. Given these findings, the court held that the appellant had no real prospect of success in her appeal against the costs orders. As a result, the appeal was dismissed and the application for an extension of time was refused.

The final orders of the court were that the appeal be dismissed, and that the application for an extension of time be refused. The costs of the appeal were ordered to be paid by the appellant to the respondent. The court's decision highlights the importance of particularising damages and replying to defences raised, as well as the consequences of causing inordinate delay in pursuing an appeal.

Orders