Stambulich v Ekamper

[1999] WASC 101

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   STAMBULICH & ANOR -v- EKAMPER [1999] WASC 101

CORAM:   MASTER BREDMEYER

HEARD:   6 JULY 1999

DELIVERED          :   27 JULY 1999

FILE NO/S:   CIV 2235 of 1992

BETWEEN:   CHARLES BRANKO STAMBULICH

First Plaintiff

RHONDA MAY STAMBULICH
Second Plaintiff

LYNDOCH HOLDINGS PTY LTD
Third Plaintiff

AND

HENDRIK FREDERIKUS EKAMPER
Defendant

Catchwords:

Appeal - Application to extend time to appeal - Reasonable explanation offered for lateness - Whether grounds of appeal have no prospect of success

Legislation:

Rules of the Supreme Court (WA) O 63 r 4(1)

Result:

Application allowed

(Page 2)

Representation:

Counsel:

First Plaintiff                :     Mr R I Viner QC

Second Plaintiff            :     Mr R I Viner QC

Third Plaintiff               :     Mr R I Viner QC

Defendant:     Mr G A Rabe

Solicitors:

First Plaintiff                :     Corser & Corser

Second Plaintiff            :     Corser & Corser

Third Plaintiff               :     Corser & Corser

Defendant:     Stables Scott

Case(s) referred to in judgment(s):

Dr Martens Australia Pty Ltd & Ors v Bata Shoe Company of Australia Pty Ltd & Ors (1997) 145 ALR 233

Case(s) also cited:

Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd & Ors (1991) 104 ALR 1655

(Page 3)

1. MASTER BREDMEYER:  This is an application by the plaintiffs under the Rules of the Supreme Court O 63 r 4(1) to extend the time within which to appeal. The orders of Scott J, the subject of the proposed appeal, were made on 23 April 1999. The 21 day appeal period thus expired on 14 May 1999. This application was brought within that period on 13 May 1999.

2. The court has a very wide discretion to grant extensions of time to appeal, but the discretion given to the court for the sole purpose of enabling it to do justice between the parties can only be exercised in favour of the applicant upon proof that strict requirements with the rules will work an injustice upon him.  Even if the delay in filing a notice of appeal is explained, the application for an extension of time should be refused if the appeal would have no prospects of success.  The question in each case is whether justice as between the parties would be best served by granting or refusing the application, weighing the injustice to the appellant if the application is refused, and the possible injustice to the respondent resulting from the disturbance of his vested interest in maintaining the judgment: Seaman 63.4.2. 

3. In this case the application for an extension was made within the 21 day appeal period.  The application is supported by an affidavit of Mr Viner QC and an affidavit of Nicholas Cogin, the plaintiffs' solicitor.  The reason for the lateness was that the appeal was being considered by Mr Viner QC who had been the counsel in the 10 day trial before Scott J.  Mr Viner underwent an operation on his foot on 23 April 1999 and thereafter spent much time recuperating.  His foot became infected after the operation and he was hospitalised again for a further five days undergoing further foot surgery and the intravenous intake of antibiotics.  When he was discharged from hospital he remained on antibiotics for another four to six weeks and part of that time those antibiotics were administered day and night intravenously.  He attempted to work during this time, but the amount of work that he could do was curtailed by the extent of his injuries.  I permitted Mr Viner to elaborate a little on his injuries and incapacity by a statement from the bar table to cover some omissions in the affidavit.  There was no objection to that course.  I am satisfied that the plaintiffs have a reasonable explanation for the lateness of the application. 

4. Mr Rabe, for the defendant, argued that the appeal has no prospects of success and that the appeal grounds are inadequately expressed.  He also relied on an affidavit from the defendant pointing out the hardship and stress he has endured through this long, drawn‑out litigation. 

(Page 4)

1. Ground 1 of the proposed notice of appeal relates to the sum of $69,200.  The trial Judge found that the defendant, who was the accountant for the plaintiffs, owed fiduciary duties to the plaintiffs and received this sum of $69,200 from the plaintiffs, and that he was guilty of breach of trust in relation to this sum.  He was given the money for the payment of the plaintiffs' income tax, but used part of it on his own private project.  He was that time developing a property and he used part of the plaintiffs' money on that project.  Ultimately, however, he did pay the whole of that money towards meeting the tax liabilities of the plaintiffs.  In relation to that breach of trust, the trial Judge had to consider whether the appropriate remedy was an order against the defendant to account for the profits made with that money, or whether an order for compound interest should be made against him.  The plaintiffs argued that an order for an account of profits was appropriate.  The defendant argued that an order for compound interest was appropriate.  Case law establishes that a plaintiff can only obtain judgment for one or the other:  Dr Martens Australia Pty Ltd & Ors v Bata Shoe Company of Australia Pty Ltd & Ors (1997) 145 ALR 233 at 237. Scott J held that, as there was no evidence that the defendant had made any profit by his use of the funds provided by the plaintiffs, an award of compound interest was appropriate. I consider that ground 1.1 in the proposed notice of appeal fails to identify any error of law or fact in relation to the Judge's decision on this point and I consider that the appeal has no prospects of success on this point. I therefore propose to strike out grounds 1.1 and 1.2 of the notice of appeal.

2. I have considered the defendant's arguments on the other grounds of appeal and am unable to conclude that they have no prospects of success.

3. I consider that it would be an injustice to the plaintiffs to deprive them of their right of appeal, except in relation to grounds 1.1 and 1.2, and I am not persuaded by the defendant's affidavit that the possible hardship of an appeal to him outweighs that.  In that affidavit he argues that a number of the claims now sought to be taken on appeal relate to small sums of money and that these claims could easily have been brought in the Local Court.  I am unmoved by that.  This point was made before the trial Judge in asking for special orders for costs in favour of the defendant which were made.  In any case, the plaintiffs' claims included some big sums as well as some smaller sums, but they all related to the defendant's work as accountant for the plaintiffs and it seems not inappropriate that they all be considered in the one action.  The defendant also says that he made numerous offers to settle and he details them in par 11 of his affidavit.  These offers to settle, in particular one made in December 1997,

(Page 5)

was considered by the trial Judge and accepted by him as the basis of making special costs orders against the successful plaintiffs and I do not consider these matters are relevant to the present application.

1. When I weigh up all relevant matters I consider it just to give an extension of time to appeal in terms of the notice of appeal of 15 June 1999, but with grounds 1.1 and 1.2 deleted.  I will hear the parties on costs.