Slaveska v Elenchevski
[2012] VCC 311
•28 March 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT MELBOURNE
CIVIL DIVISION
COMMERCIAL LIST – GENERAL DIVISION
Case No. CI-08-04828
| STOJANKA SLAVESKA | Plaintiff |
| v | |
| DRAGAN ELENCHEVSKI | Defendant |
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JUDGE: | HIS HONOUR JUDGE ANDERSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 February 2012 | |
DATE OF JUDGMENT: | 28 March 2012 | |
CASE MAY BE CITED AS: | Slaveska v Elenchevski | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 311 | |
REASONS FOR JUDGMENT
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Catchwords: Practice and procedure – Defendant’s application for the dismissal of the proceeding – Whether plaintiff’s claim has a “real prospect of success” – Whether inordinate and inexcusable delay in prosecuting the claim – Plaintiff’s failure to provide particulars of damages claimed – Rules 23.03 and 24.02(1)(a) County Court Civil Procedure Rules 2008.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N. Terziovski | MA Legal |
| For the Defendant | Mr A. Sandbach | Flitner & Company |
HIS HONOUR:
1 By Summons filed 18 January 2012 the defendant seeks the dismissal of the proceeding on three grounds:
a. pursuant to Rule 23.03, on the basis that “the defendant has a good defence on the merits”;
b. for want of prosecution;
c. pursuant to Rule 24.02(1)(a), following the plaintiff’s failure to comply with an order dated 21 February 2011 requiring the plaintiff to provide particulars of the damages claimed in the Statement of Claim.
2 The action was commenced by Writ filed 13 November 2008. The plaintiff claimed relief arising from an agreement entered into on about 26 March 1986 for the sale of a property in Ohrid, Macedonia. The plaintiff claimed that a written agreement had been signed by her agent, Krste Slaveski and by the defendant. The property, a house with land comprising 485 square metres, was alleged to have been sold to the plaintiff for $56,000. The plaintiff claimed she paid the purchase price and later took possession of the property including the entire land area of 485 square metres which was enclosed by a fence.
3 In 2003, the plaintiff said she became aware that the defendant had earlier transferred 149 square metres of the total land area she believed she had purchased, leaving her with 336 square metres. The 149 square metres was land adjacent to the house and upon which it was apparently planned to construct a public road. The plaintiff was the defendant to proceedings commenced by the defendant’s brother, Ljubin Elenchevski, in the courts of Macedonia. Ultimately, she was unsuccessful in establishing, as against the defendant’s brother, her ownership of the disputed 149 square metres of land.
4 In the present proceeding, the plaintiff seeks “the sum of $17,204.12 being the proportion of the [purchase] payment attributable to the” 149 square metres and “damages for loss of use of money”, “damages for opportunity cost” and “general damages”. These damages are presently not quantified or particularised.
5 Upon the hearing of the application, plaintiff’s counsel repeated a submission made at an earlier interlocutory hearing that the plaintiff’s claim is simple and straightforward and clearly meritorious and that the delays in bringing the action to trial have been unfortunate but were not matters for which the plaintiff should bear responsibility.
6 The defendant’s submissions suggest that the claim has no merit and the proceedings have been conducted on behalf of the plaintiff in a manner which demonstrates a contumelious disregard for court orders and involves lengthy delays which are unacceptable and largely unexplained.
7 In order to determine the present application it is necessary to examine the history of the proceeding in some detail. The critical matters in that examination are as follows:
Representation of the plaintiff
a. The plaintiff had solicitors on the record from the commencement of the proceeding on 13 November 2008 to 17 July 2009 when Kenyon Lawyers ceased to act. Between 17 December 2009 and 15 February 2010 the plaintiff and her family had dealings with Mr James Fernandez, the principal of Fernandez & Johnson. Mr Fernandez said in an affidavit that in conference on 17 December, he told the plaintiff and members of her family that he would be prepared to look at documents they had brought to the conference for the purpose of exploring “the possibility of settling the proceeding”. The plaintiff’s son, Mr Lupco Slaveski, asserted in an affidavit that Mr Fernandez agreed to “take on the case”. At no stage did Mr Fernandez file a notice that his firm was acting in the proceeding. On 15 February 2010, he introduced the plaintiff to solicitors, Wilmoth, Field & Warne, whom he believed would act for the plaintiff. That firm was not prepared to act. The plaintiff’s present solicitors filed a notice of solicitor acting on 8 February 2012.
b. During other periods, the plaintiff has effectively been self-represented. At certain hearings family members – her son, Lupco Slaveski, and her daughter-in-law, Snezana Slaveska, have been permitted to represent the plaintiff. On 8 October 2010, I refused leave for Snezana Slaveska to represent the plaintiff at the trial of the matter.
c. The plaintiff is an elderly woman with significant health issues. In an affidavit sworn 17 July 2009, she described herself as “non English speaking or reading, and lack of Macedonian education with only second grade in school in Macedonia”.
d. The plaintiff’s older son, Krste Slaveski, is alleged to have executed on the plaintiff’s behalf the agreement with the defendant dated 26 March 1986. Another son, Lupco Slaveski, has represented (or sought to represent) his mother at various hearings. Contemporaneously with this proceeding, Mr Lupco Slaveski was a plaintiff in a proceeding in the Supreme Court of Victoria before Kyrou J. That matter was determined by Judgment on 1 October 2010 (see [2010] VSC 441). During the trial of the Supreme Court proceeding, Mr Lupco Slaveski was represented by his wife, Snezana Slaveska.
e. The plaintiff’s solicitors, Kenyon Lawyers, issued the Writ with a Statement of Claim attached. A defence was filed on 10 January 2009. Prior to the withdrawal of the plaintiff’s solicitors on 17 July 2009, a number of interlocutory steps had been completed as follows:
i. On 3 February 2009, the plaintiff requested further and better particulars of the defence;
ii. on 24 February 2009, the defendant requested further and better particulars of the Statement of Claim;
iii. On 6 March 2009, the defendant provided further and better particulars of the defence;
iv. on 30 March 2009, the plaintiff provided further and better particulars of the Statement of Claim;
v. on 3 April 2009, the defendant swore an affidavit of documents;
vi. on 9 April 2009, the plaintiff swore an affidavit of documents;
vii. on 16 July 2009, the plaintiff swore a second affidavit of documents;
viii. on 27 May 2009, a mediation was conducted.
f. Kenyon Lawyers withdrew as the plaintiff’s solicitors on 17 July 2009, the day I ordered that the first trial date of 29 July 2009 be vacated. Apart from affidavits filed on the plaintiff’s behalf in response to the present application, all other documents required for interlocutory steps, including a number of hearings, have been prepared by family members on the plaintiff’s behalf.
Pleadings
8 The Statement of Claim makes a claim based on the written agreement dated 26 March 1986. There is a further or alternative claim based upon a “representation” that “the land [sold] comprised 485 square metres and that the defendant held clear title to all the land”, and that the representation was made “in order to induce the plaintiff to enter into the agreement”. In fact, the plaintiff apparently wishes to plead a “fraudulent representation” entitling her to claim damages. The particularisation of the fraud and the damages is presently inadequate.
9 The defence raised a number of issues:
a. the defendant says that, “he did not enter any agreement for the sale of land in Melbourne whether in 1986 or at any other time” (paragraph 3);
b. the defendant “signed a document dated 26 March 1986 (‘the informal contract’) relating to the sale of the house” (paragraph 5);
c. the “informal contract did not constitute a legally binding agreement for the sale of the land in the Republic of Macedonia as it neither identified any particular parcel or land nor did it comply with the requirements of the laws of the Republic of Macedonia relating to the sale of land in that State” (paragraph 5);
d. the defendant on about 26 May 1986 entered into a contract of sale of the house in Ohrid, Macedonia with a “total area of 336 square metres” for 800,000,000 old dinars (paragraph 6);
e. any agreement in March 1986 was “abandoned” and “encompassed” by the May 1986 agreement (paragraph 7);
f. in about 1984 the defendant “gave” the disputed land of 149 square metres to his brother, Ljubin (paragraph 8);
g. the gift of 149 square metres of land to the defendant’s brother was “immaterial” to the defendant’s sale of the house and 336 square metres of land to the plaintiff (paragraph 20);
h. the plaintiff’s pleading in the Statement of Claim of a claim based upon a “representation” does “not disclose any cause of action…and ought to be struck out” (paragraph 25);
i. any cause of action by the plaintiff “accrued to her more than six years before the commencement of this proceeding and was and is barred by virtue of s.5 of the Limitation of Actions Act 1958”.
10 The plaintiff did not file a reply. There was therefore no pleading in response to the defendant’s allegations about:
a. the effect in Macedonian law on the agreement dated March 1986;
b. the fact of the parties entering into a further agreement in May 1986 and the effect of that agreement;
c. the plea that the claims were statute barred.
11 Upon the hearing of this application, plaintiff’s counsel submitted that s.27 of the Limitation of Actions Act applied and the limitation period did not begin to run until the plaintiff discovered the defendant’s “fraud” in 2003 (being transfer of the 149 square metres parcel of land to the defendant’s brother). The plaintiff’s causes of action were “based upon the fraud of the defendant” (the alternative representation claim) or had been “concealed by the fraud” of the defendant (the claim based upon the March 1986 agreement).
Further particulars of the Statement of Claim
12 By order made 8 October 2010, the trial date of 16 November 2010 was vacated. In addition, I ordered that the plaintiff, by 4 November 2010, provide particulars of:
a. the damages claimed in paragraphs B, C and D of the relief sought in the Statement of Claim;
b. the allegations of fraud.
13 On 5 November 2010, the time for compliance with the order was extended to 18 November 2010. By an order made 21 February 2011, after vacating the trial date of 28 February 2011, I ordered that the plaintiff, by 6 October 2011, provide the particulars previously ordered on 8 October 2010. To date, there has been no compliance with the orders.
Vacated trial dates
14 By order made 27 January 2009, the proceeding was set down for trial on 29 July 2009. The trial date was vacated by order made on 17 July 2009, upon the plaintiff’s application, as the plaintiff wanted further time to obtain a report from a handwriting expert in relation to the question of whether the defendant had executed the agreement dated March 1986 and in order for the plaintiff to obtain the file of the court proceedings in Macedonia. The trial was refixed for 18 February 2010.
15 By order made 18 February 2010, the trial date was vacated and refixed for 23 June 2010. The plaintiff was unrepresented. Her son, Mr Slaveski, stated that the plaintiff wished to proceed with the trial with him representing his mother. His Honour Judge Shelton did not permit him to do so and the trial was adjourned. On 23 June 2010, the plaintiff had no legal representation. Mrs Snezana Slaveska stated that the plaintiff wished to proceed with herself representing her mother-in-law. I did not permit that course but directed that any application for Snezana Slaveska to represent her mother-in-law must be made upon notice to the defendant. In any event, there was no judge available to commence the trial that day. On 8 October 2010, I refused an application for Snezana Slaveska to represent her mother-in-law at trial. I vacated the trial date of 16 November 2010 and refixed the proceeding for trial on 28 February 2011 and made orders in an attempt to ensure that the plaintiff would be appropriately represented.
16 On 21 February 2011, the trial date of 28 February 2011 was vacated as the orders made on 8 October 2010 had not been complied with by the plaintiff. The proceeding was refixed for 6 February 2012 on the basis that the plaintiff must comply with various orders relating to her representation and other matters. These orders were not complied with and as a consequence the trial could not proceed on 6 February 2012.
Prospects of success of the plaintiff’s claim
17 The defendant asserts that the plaintiff’s claim should be dismissed pursuant to Rule 23.03 because “the defendant has a good defence on the merits”. Under the Civil Procedure Act 2010 the claim may be dismissed if the Court is satisfied that the claim has “no real prospect of success” or that there is no basis upon which the Court considers the proceeding should otherwise be determined at trial. The defendant relies upon three matters in support of the submission that he has a good defence on the merits:
a. The plaintiff entered into an agreement in May 1986 for the purchase of the house with only 336 square metres of land.
b. The March 1986 agreement relied upon by the plaintiff provided a procedure for the plaintiff to withdraw from the purchase and obtain a refund of the deposit paid. Instead, the plaintiff proceeded with the purchase after May 1986 knowing that the defendant was only able to transfer 336 square metres of land.
c. Any cause of action in reliance upon the March 1986 agreement had long been statute barred.
18 The plaintiff’s claim relies upon a written contract with the defendant dated 26 March 1986 for the purchase of a house in Macedonia with 485 square metres of land. The plaintiff says that her elder son, Krste Slaveski, entered into the agreement as her agent. There are two versions of the March 1986 agreement. Each document has two pages. The second page of each document appears to be the same, containing the signatures of the defendant as vendor, Mr Slaveski as buyer and four witnesses.
19 The defendant, in his affidavit sworn 12 January 2012, exhibited both versions of the agreement. He said, that he had not “had my own copy of the agreement … in my possession for many years”. He said in relation to the two copies of the agreement he exhibited:
a. The “shorter” version was “initially discovered by the plaintiff in this proceeding”.
b. The “longer” version was produced by the plaintiff “in support of her claim to the disputed strip of land to the court in Macedonia”.
20 The defendant stated further: “I do not recognise either of the versions produced by the plaintiff as a correct copy of the informal agreement made in 1986”. On 8 October 2010, I made orders requiring the defendant to inspect the original of the “longer” version of the agreement and to state whether he admitted that his signature appeared on page 2 of the document. The defendant swore an affidavit on 22 October 2010 stating that he had inspected the document the previous day and said further: “I do not admit that my signature appears on page 2 of the original document”. Subsequently the plaintiff has obtained and filed a report by Mr Trevor Joyce, a forensic document examiner, who has expressed the opinion that the defendant signed the “longer” version of the agreement. In his affidavit dated 12 January 2012, the defendant stated: “I did sell land in Macedonia to the plaintiff pursuant to a written agreement made in Australia. The agreement made between Krste Slaveski and I was never capable of registration in Macedonia”. This Statement is reflected in the defence at paragraph 5.
21 The plaintiff, in her affidavit sworn 13 July 2009, stated that on 26 March 1986:
a. The defendant provided her with a copy of a photograph of the house and wire fence enclosing the property and a “Land Office document” setting out a description of the property with a total area of 485 square metres.
b. At some stage the defendant also gave the plaintiff a copy of the contract of sale from when the defendant had purchased the property totalling 485 square metres in 1977.
c. The defendant had written out the March 1986 agreement in his own hand.
22 The plaintiff said in her affidavit that, “In the interlocutory steps the defendant has produced amended – cut – edited – synchronised – tampered contract dated 26 March 1986 according to him”. This was apparently the “shorter” version of the contract.
23 The defendant’s counsel, Mr Sandbach, referred a number of times in his submissions to the fact that much of what the defendant had raised in his recent affidavit material had “remained unanswered” by the plaintiff. One example he gave was the defendant’s assertions about the plaintiff having produced “different” versions of the March 1986 agreement. This, however, was not the case as the plaintiff had addressed the issue in her affidavit dated 13 July 2009. She has always relied upon the “longer” form of the agreement, both in the present proceeding and in the counterclaim in the Macedonian courts.
24 Notwithstanding the defendant’s refusal, after perusing the original of the document, to admit that it contains his signature, that fact seems to be confirmed by Mr Joyce’s expert report and by the assertions of the plaintiff that the defendant had written the March 1986 contract “with his own handwriting” and that the document was “witnessed and signed by witnesses”. These facts were confirmed by one of the witnesses, Peter Damianopoulos, in a written Statement dated 17 March 2009 attached to the plaintiff’s affidavit sworn 13 July 2009.
25 In paragraph 5 of his defence, the defendant alleges that under Macedonian law the March 1986 agreement “did not constitute a legally binding agreement for the sale of land” in Macedonia. That allegation was not supported in the present application by affidavit material as to the appropriate Macedonian law or submissions as to which law should be applied to determine the validity of the agreement. These are matters I noted in paragraphs 11(c) and (d) of my Reasons for Judgment dated 8 October 2010 and which I considered were raised for determination in the proceeding.
26 The defendant submitted that the March 1986 agreement did not adequately identify the property sold. There are two separate English language translations of the “longer” agreement although they are not significantly different. The translation relied upon by the plaintiff describes the subject matter of the agreement as, “the sale/purchase of a house, located in Ohrid (Yugoslavia)” and states that “the house is situated on 485 sq m of land”. The plaintiff says in her affidavit sworn 13 July 2009 that the defendant gave her a photo of the house “and cadastral lot number from the municipality of Ohrid totalling an area of 485 sq m”. The cadastral plan exhibited contained the number 12724. In the absence of any evidence of Macedonian law, it is not possible to determine the sufficiency of the description of the property referred to in the March 1986 agreement although, on the plaintiff’s case, the intention of the parties appears clear.
27 The defendant’s principal submissions, however, were that:
a. The March 1986 agreement anticipated that the agreement may not be concluded because the land “in its entirety … cannot be transferred to the purchaser for any reason”. In that event, the deposit would be refundable. Of the purchase price of $56,000, $10,000 deposit was paid on 26 March 1986 and the purchaser agreed to “pay the rest when the procedure of transferring the house to the buyer’s name is complete”.
b. The March 1986 agreement was overtaken by the May 1986 agreement which described the “subject of this sales contract” as, “a house consisting of a ground floor and one storey, located in Ohrid … cadastral lot no. 12724/1, with a total area of 336 square metres which consists of a house and courtyard”. The consideration was expressed to be “800 millions old dinars” which the document recorded the buyer having paid to the seller “in full”.
28 The defendant said in his affidavit sworn 12 January 2012 that, “The adjoining strip of land of 149 square metres which I also owned at that time was incapable of sale under Macedonian law at the time I sold my house to the plaintiff. We were both aware of that fact when the plaintiff chose to enter the contract”. The defendant said that, “the plaintiff’s knowledge of that fact is demonstrated by the terms of her counterclaim to the Macedonian court”.
29 The plaintiff’s counterclaim in the Ohrid Magistrates’ Court states that the counterclaim was brought “to establish her proprietary rights over a part of her courtyard that forms a functional entity with her family home, and which is registered in the Cadastre as Kp.br.12724/2, with an area of 149 m² ”. The counterclaim sets out the relevant facts the plaintiff relied upon as follows:
a. The plaintiff and the defendant “made a handwritten sales contract for the house and its courtyard totalling an area of 485 m². They paid a deposit to the vendor, and it was agreed they will pay the remaining balance when the house and the courtyard are transferred to the buyers”.
b. The plaintiff “went to Ohrid to complete sales … While completing the necessary documentation, it was established that the house was not registered with the Cadastre. Because it was planned to build a road on a part of the lot, the house with its courtyard was registered as a separate cadastral lot number 12724/1, while the remaining yard was registered as cadastral lot 12724/2, both of them in the name of the vendor Dragan Elenchevski. Therefore, there was no legal option to transfer the cadastral of 12724/2 which was planned for public works”.
c. “But in the handwritten contract made in Australia it was agreed that the buyer buys a house and a courtyard with a total area of 485 m². The defendant and her family hold in possession the entire lot ever since, and this possession was not disputed until now”.
30 I do not propose to examine the decisions of the Macedonian courts in detail save to note:
a. The Appeal Court referred to certain statutory provisions which apparently set out “essential elements” required to be included in the written legal document in order to validly transfer real property.
b. The plaintiff’s counterclaim was unsuccessful as she could not produce a contract which was effective to transfer the 485 square metres to her.
c. In 1986, the disputed area of 149 square metres was “nationalised and could not be subject to trade”.
d. The alternative bases for the plaintiff’s counterclaim, that she had been in possession of the disputed land, failed because in 1986 she knew that the land “could not be subject to legal trade”.
e. The defendant’s brother (the applicant in the Macedonian court) had lawfully acquired the proprietary rights to the disputed land through a Contract of Gift in 2003.
f. There was conflicting evidence about whether in 1986 the plaintiff “had taken control of the house and its yard in 1986, and the same had been fenced off with wooden posts and wire”, or whether, “when she started to erect a concrete parapet with a wire and metal frame, she was stopped by the applicant’s sister who asked the police to intervene”.
31 The defendant submitted that the plaintiff had in May 1986 entered into a formal contract in Macedonia in the following circumstances:
a. The plaintiff knew that the May 1986 agreement related only to cadastral lot number 12724/1 with a total area of 336 square metres.
b. The plaintiff acknowledged paying “in full the agreed selling price”.
c. The document was formally drawn up, typed and headed “Real Estate Sales Contract” and contained various acknowledgements and certifications.
d. The plaintiff made no attempt to obtain a refund of the $10,000 deposit paid pursuant to the March 1986 contract although the defendant was unable to transfer the total area of 485 square metres and could only transfer an area 149 square metres less than the total area.
32 It is noted that:
a. The Statement of Claim made no mention of the May 1986 agreement.
b. The further and better particulars of claim stated that the $10,000 deposit was paid “in cash at the time of execution of the agreement” on 26 March 1986 and “later in 1986, the plaintiff … paid to the defendant the sum of $46,000 which transaction was facilitated by the Commonwealth Bank of Australia”.
c. There was no reply filed by the plaintiff responding to the pleading of the May 1986 agreement in the defence. The defence was filed on 10 January 2008. Kenyon Lawyers did not cease to act for the plaintiff until 17 July 2009, after further interlocutory steps had been carried out.
d. The plaintiff’s affidavit sworn 13 July 2009 did not refer to the May 1986 agreement.
e. The affidavit stated that she had “won” the case in Macedonia. There was no reference to the later proceedings in which the earlier decision was revoked on appeal and the revocation was confirmed.
33 The plaintiff’s counsel, Mr Terziovski, informed the Court that, after the plaintiff had executed the documents in Macedonia (presumably the May 1986 agreement), the 336 square metres was transferred to her and “she thought that the 149 square metres would later be transferred”. The plaintiff took possession of the land and exercised “exclusive possession” until, in 2003, she became aware that the defendant’s brother was claiming that he had proprietary rights in respect of the 149 square metres. The issue of the plaintiff’s belief that 149 square metres would later be transferred to her was never raised in the pleadings or in affidavit material filed on the plaintiff’s behalf.
34 At present, therefore, the plaintiff’s claim in reliance upon the March 1986 agreement faces the following difficulties:
a. The March 1986 agreement is a handwritten document with little formality. At best, it refers to the disputed land by the description of the subject of the “sale/purchase” as “a home located in Ohrid (Yugoslavia)” and the inclusion in Condition 2 of the Statement that “the house is situated on 485 square metres of land”.
b. The March 1986 agreement, by Condition 2, foreshadows that the whole of the 485 square metres of land may not be able to be transferred and if that portion not transferred is more than 50 square metres the purchaser may “pull out from the purchase” and “the deposit [of $10,000] is to be returned”.
c. No reference is made in the Statement of Claim to the May 1986 agreement. The document is relied upon by the defendant in his defence. The plaintiff did not file a reply and has not referred to the May 1986 agreement in her affidavit material. In her counterclaim in the Macedonian proceeding, the plaintiff referred to “completing the necessary documentation” when she “went to Ohrid to complete the sales”, without further elucidation.
d. The defendant stated in his affidavit sworn 12 January 2012 that in 1986 the plaintiff travelled to Macedonia and “concluded a formal agreement capable of registration in Macedonia for the sale of my house in Ohrid and the 336 square metres of land on which it stood”, and that the later agreement had been “duly registered”. In her counterclaim in the Macedonian court, the plaintiff explained that separate cadastral lot number 12724/1 was created for the house and courtyard (comprising 336 square metres) because “it was planned to build a road on part of the [original cadastral lot 12724]” and that “the remaining yard [149 square metres] was registered as cadastral lot 12724/2 [and] therefore there was no legal option to transfer the cadastral lot 12724/2 which was planned for public works”.
e. No explanation has been provided by the plaintiff as to ─
i. Whether she executed the May 1986 agreement.
ii. If so, the reason she did so.
iii. Why the agreement was limited to 336 square metres.
iv. What was the intended effect on the March 1986 agreement: was the May agreement to replace the March agreement?
v. Why the plaintiff did not seek to withdraw from the March 1986 agreement and obtain a refund of the $10,000 deposit paid.
vi. The circumstances in which the sum of $46,000 was transferred to the defendant later in 1986.
vii. What basis was there for the plaintiff to believe that the 149 square metres would be later transferred to her?
viii. How is it asserted that after 1986 the plaintiff exercised “exclusive possession” of the whole of the 485 square metres.
35 The alternative claim in the Statement of Claim is based upon an alleged representation that, in order to induce the plaintiff to enter into the March 1986 agreement, “the defendant represented to the plaintiff that the land comprised 485 square metres and, that the defendant held clear title to all the land”. It was alleged that Statements to this effect had been made by the defendant to her son, Krste Slaveski and by the provision of a Title Deed and Plan which was annexed to the March 1986 agreement. It became apparent during the hearing that the plaintiff relies upon those actions as constituting a fraudulent representation entitling her to claim damages and also as a “fraud” which concealed the plaintiff’s right to bring an action until she discovered the fraud in about 2003.
36 The fraud was said to be the action of the defendant in entering into the March 1986 agreement to sell the property including 485 square metres to the plaintiff knowing, either that he did not have the capacity to transfer the later disputed area of 149 square metres because it had been set aside as a public road, or alternatively, because he had no intention of transferring that land as he had entered into an earlier arrangement in 1984 giving the 149 square metres of land to his brother, Ljubin Elenchevski.
37 From the Statement of Claim, it is difficult to understand that the plaintiff is making an allegation of fraud or to identify what is said to be the fraudulent act or acts of the defendant. In general terms, the allegation appears to be that by the March 1986 agreement the defendant promised to transfer 485 square metres of land but did not subsequently do so because he was unable to or did not want to. It is not clear, therefore, what is relied upon as the fraudulent conduct of the defendant at the time he made the alleged representation which induced the plaintiff to enter into the March 1986 agreement. For example, whether at that time he knew that he had no capacity to transfer the later disputed portion of 149 square metres, or at that time, he fully intended to transfer that part of the land to his brother pursuant to an earlier arrangement reached with him in 1984.
38 Paragraph 17 of the Statement of Claim alleges that the relevant facts “were well known to the defendant but he failed to communicate them to the plaintiff”. The “facts” are pleaded as three alternatives in paragraph 16, and paragraph 17 does not attempt to give particulars of the relevant defendant’s knowledge which would found an action based on fraud. In the circumstances, the present pleading is inadequate. This was one of the matters I highlighted in an earlier Judgment delivered on 8 October 2010 (see para. 11(b)).
39 In so far as the allegation of fraud is relied upon as the reason for the postponement of the limitation period in respect of the claim based upon the March 1986 agreement, that matter is not raised presently by way of reply, although the statute of limitations defence was raised by the defence. In the circumstances, the claim as presently pleaded by the plaintiff in her Statement of Claim and her lack of response by way of reply to the defences raised by the defendant, makes it clear that her present claim would have no real prospect of success at trial.
40 The only basis upon which I should allow the matter to go forward is if the plaintiff were to be permitted to file and serve an Amended Statement of Claim containing appropriate particulars of the matters she raises and to file a reply pleading fraud and fraudulent concealment as reasons for postponing the operation of the Limitations of Actions Act.
41 The affidavit material filed on behalf of the plaintiff does not, in my view, go anywhere near far enough to providing a satisfactory basis for the articulation of the plaintiff’s claims or the basis for her response to the defences raised by the defendant. Ordinarily, the application would be dealt with on the basis of the existing pleadings, not possible pleadings that may be filed if a further opportunity were given to the plaintiff. It is, however, appropriate to examine the conduct of the plaintiff in the proceeding before determining whether the proceeding should be struck out because, at present, the plaintiff has no real prospect of success.
Has there been a “want of prosecution” of the plaintiff’s claim?
42 The proceeding was commenced by Writ on 13 November 2008. The case should have been heard on the first trial date fixed on 29 July 2009. Plaintiff’s counsel, Mr Terziovski conceded that if the matter were permitted to proceed, the plaintiff would need time to file an Amended Statement of Claim to which the defendant would need to file an Amended Defence. The plaintiff would be required to file a reply. It would be likely that the parties would request particulars of the pleadings and time would be needed for the filing of expert reports, particularly in relation to the issue of Macedonian law. The very earliest the case could be refixed for trial would be towards the end of this year.
43 There have been delays of at least three years in the progress of this matter. Primarily, those delays have arisen for the following reasons:
a. The plaintiff has had difficulty maintaining consistent representation.
b. The plaintiff has failed to file court documents which properly and fully articulate her claims and responses to the defences.
44 The plaintiff is an elderly person. Her husband died in late 2010. She has clearly been reliant on family members, particularly her son, Lupco Slaveski and her daughter-in-law Snezana Slaveska, for assistance in the proceeding. Her son has, during the last three years, been involved in long-running Supreme Court litigation in which he was the plaintiff. During the lengthy trial before Kyrou J, Mr Slaveski was represented by his wife Snezana. It is apparent too, that Mr Slaveski has psychological issues which can at times affect his ability to act appropriately.
45 The plaintiff and her family members have attempted to obtain legal assistance from a large number of lawyers. Only Kenyons Lawyers, who initiated the proceedings and more recently, M A Legal, have been prepared to file a notice that they act for the plaintiff. Other solicitors have given more limited assistance, and on occasions, disputes have arisen between the plaintiff and her family members with the solicitors. For example, in February 2010, a dispute arose as to whether solicitors Fernandez & Johnson had agreed to represent the plaintiff at the trial fixed for 18 February 2010. Later in June 2010, Mr Slaveski in submissions and Mrs Snezana Slaveska in an affidavit, accused solicitor Mr Les Christie of having “worked in conspiracy [with the defendant’s solicitor] against my mother-in-law and took an advantage of her and planned her to have no representation for today so they can get costs against her”.
46 On occasions, for example, the trial date fixed for 18 February 2010, and later when application was made for Snezana Slaveska to represent her mother-in-law at trial, the plaintiff’s family members have offered to take on the responsibility of representing the plaintiff. In the judgment I delivered on 8 October 2010, I concluded that I could have no confidence that “Mrs Slaveska understands the nature of the task required of a person accepting responsibility to conduct the proceeding on behalf of the plaintiff or that the plaintiff’s interests would be well-served by permitting her daughter-in-law to conduct the proceeding at trial”. Whilst the Court may sympathise with the position of the plaintiff as an elderly person involved in litigation concerning events more than 25 years ago, nevertheless the proceeding was initiated by her and ultimately she must bear the responsibility for delays which have resulted from her lack of adequate representation.
47 The Court has power to dismiss the proceeding for want of prosecution if there is a substantial risk that it would not be possible to have a fair trial of the matters in dispute because of the plaintiff’s “inordinate and inexcusable delay” or defaults on her part which have been “intentional and contumelious”.
48 There have been significant delays in the progress of this matter. At the earliest, a trial of the proceeding will not take place until the end of this year, about 4 years after the writ was issued. On six occasions, previously listed trial dates have been vacated. It is difficult to attribute any responsibility for this delay to the defendant. The defendant by not admitting his signature on the March 1986 document had put the plaintiff to her proof. This apparently required the plaintiff to engage a handwriting expert to prepare an expert’s report and this was part of the reason for the vacation of the trial date on 29 July 2009.
49 The delays in the progress of this matter appear to have arisen primarily as a result of the failure by the plaintiff to retain consistent legal representation. This appears to have been due to three factors:
a. the plaintiff’s first solicitors withdrawing shortly prior to the first trial date;
b. the inability of the plaintiff to engage alternative solicitors, except for limited purposes, until recently when her present solicitors came onto the record;
c. the involvement of the plaintiff’s family members and their apparent belief that they had the necessary capacity to assist the plaintiff to prepare court documents and to represent the plaintiff at directions hearings and at trial.
50 During the proceeding, the defendant has taken the steps required of him although it was not until the issue of the summons dated 18 January 2012 that the defendant has taken active steps to have the proceeding dismissed. The issue of the summons appears to have spurred the plaintiff into engaging solicitors who have been prepared to go on the record. Mr Terziovski informed me that his clients had put his firm in funds sufficient to complete the pre-trial processes. Notwithstanding, the affidavit material filed on the plaintiff’s behalf in opposition to the defendant’s summons was limited and no attempt was made to comply with the outstanding order for the provision of particulars of the Statement of Claim, to make further necessary amendments to that pleading or to file a reply.
51 The defendant had been required to incur legal costs in defending the proceeding. There have been a number of court appearances for which, to date, the defendant has received no reimbursement for the costs he has incurred. The relevant costs orders made by the Court have been as follows:
a. 17 July 2009: Any costs thrown away as a result of the vacation of the trial date and the costs of the hearing today are reserved.
b. 18 February 2010: The plaintiff pay the defendant’s costs thrown away by reason of this adjournment to be taxed on Scale Defendant in default of agreement. Certify for counsel in the sum of $3,500.
c. 23 June 2010: The defendant’s costs of the hearing today and the question of whether any costs were thrown away as a result of a judge not being available to commence the case today are reserved.
d. 8 October 2010: The defendant’s costs are reserved. It is noted that defendant’s counsel seeks a brief fee of $1,650 and $1,000 for the attendance of his solicitor and $500 for the preparation of an affidavit. These costs, including whether they should be paid by the plaintiff and the quantum of the costs will be considered by the Court on the next occasion the matter returns to Court.
e. 21 October 2010: The defendant’s costs of the application and of the application determined by Judge Anderson on 8 October 2010 will be costs in the appeal from the orders of Judge Shelton made on 18 February 2010. Certify counsel’s brief fee on each occasion at $1,650.
f. 21 February 2011 The defendant’s costs are reserved. It is noted that defendant’s counsel seeks a brief fee of $1,650 and $1,000 for the attendance of his solicitor. These costs, including whether they should be paid by the plaintiff and the quantum of the costs will be considered by the Court on the next occasion the matter returns to court.
g. 3 February 2012: Reserve costs.
52 The only order made for the payment of the defendant’s costs (on 18 February 2010 for “costs thrown away”, subsequently taxed on 10 September 2010 in the sum of $7,031.30) has not been paid and is the subject of appeal, and apparently a stay of execution pending the resolution of the appeal. In his affidavit sworn in support of the present summons, the defendant stated, “I have suffered and continue to suffer a great deal of anxiety because of the prolongation of this proceeding. I am a pensioner of limited means and worry a great deal about the mounting costs of this proceeding”.
53 The proceeding deals with issues which require an investigation of matters which occurred in 1986, and even earlier. Whilst evidence will be given about the execution of the March 1986 agreement, it is likely, however, that the evidence about the execution of the May 1986 agreement and the events which followed will be of equal importance in the determination of the proceeding.
54 It is probable that all witnesses will have an imperfect memory of events 26 years ago although it is likely that the litigation in the Macedonian Courts between 2003 and 2006 will have given certain of the witnesses the opportunity to recollect the events at an earlier date. The further delay since the issue of the writ in this proceeding is unlikely to have significantly affected the memory of witnesses.
55 The orders made by the Court on 8 October 2010 and 21 February 2011 have not been complied with by the plaintiff. The orders required the provision of particulars relating to the allegation of fraud and the calculation of the losses claimed by the plaintiff. These shortcomings were identified by me in the reasons for judgment delivered on 8 October 2010. No explanation has been offered by the plaintiff for this continued default. So long as the default continues, it would not be possible for there to be a fair trial of the proceeding.
56 Whilst I consider that the delays in this proceeding since it was issued in November 2009 might fairly be described as “inordinate and inexcusable”, without more I may not have been inclined at this stage to have dismissed the proceeding for want of prosecution. However, the only real alternative to taking that step would be to give the plaintiff the opportunity file a properly articulated and particularised Statement of Claim, to give the defendant the opportunity of further submitting that the proposed amended pleading does not disclose a cause of action or should otherwise be summarily dismissed and, if the Statement of Claim and defence were regularised, examining the matters pleaded by way of reply.
57 In my view, such a course is not warranted and the interests of justice presently require the plaintiff’s claim to be dismissed. I have reached this conclusion for the following reasons:
a. the plaintiff has been in default of the orders for particulars made on 8 October 2010 and 21 February 2011.
b. the Court should ordinarily assess the question of whether the defendant has a good defence on the merits on the basis of the pleadings and affidavit material currently filed.
c. the Court cannot be confident on the basis of the affidavit material that the plaintiff would be able to properly articulate and particularise a claim, and a reply to the defence, which would have a real prospect of success.
d. the shortcomings in the plaintiff’s pleadings have been apparent for a considerable time –
i. the defendant raised the May 1986 agreement, the effect of Macedonian law on the validity of that agreement and the statute of limitations defence without any response from the plaintiff.
ii. the inadequate particularisation of the plaintiff’s claim in relation to the fraud claim and the claim for damages was referred to in the reasons for judgment given 8 October 2011, and in the later court orders.
e. six trial dates have been vacated through no fault of the defendant. If the matter were to proceed, a trial would be unlikely before the end of 2012.
f. to date, the defendant has been required to bear his own costs of the proceeding despite vacated trial dates and a number of directions hearings.
g. the delays in the matter proceeding efficiently to trial have had an adverse impact on the defendant, a person of limited financial means.
h. the plaintiff must accept some responsibility for the effect her lack of adequate legal representation has had on the progress of the action and her ability to complete the necessary pre-trial steps.
Conclusion
58 Accordingly, the plaintiff’s claim will be dismissed. I shall hear further from the parties as to the appropriate orders, including in relation to the costs of the proceeding.
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Certificate
I certify that these 24 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 28 March 2012.
Dated: 28 March 2012
Hannah Christensen
Associate to His Honour Judge Anderson
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