Stankovic v Peter Magee T/as Armstrong Legal

[2014] NSWCA 191

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Stankovic v Peter Magee T/as Armstrong Legal [2014] NSWCA 191

Hearing dates:

5 June 2014

Decision date:

05 June 2014

Before:

Basten JA at [1];
Ward JA at [13]

Decision:

(1) Reject the applicant's motion to adjourn the proceedings in this Court.

(2) Extend time to seek leave to appeal to 29 August 2013.

(3) Grant the applicant leave to appeal subject to the applicant lodging within 21 days with the Registrar of this Court a draft defence in the form proposed to be relied on if the default judgment in the District Court is set aside and he is allowed to defend those costs proceedings.

(4) Grant both parties leave to approach the Registrar on three days' notice.

(5) The costs of the application shall be costs in the proceedings in this Court.

(6) Dismiss the notice of motion filed in court seeking orders for trial by jury and a declaration as to the meaning of "dismiss".

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PRACTICE and PROCEDURE - application for extension of time - summons filed three days late - no prejudice alleged by respondent

PRACTICE and PROCEDURE - application for leave to appeal - default judgment entered without notice - application to set aside judgment dismissed because filed out of time - whether arguable defence - issue as to construction of rule prohibiting variation of order more than 14 days after entry where notice of judgment given nine days after entry - leave subject to condition as to proposed defence

Legislation Cited:

Uniform Civil Procedure Rules (NSW), rr 14.3, 16.2, 16.3, 36.16

Cases Cited:

Northumbrian Ice-Cream Co Ltd v Breakaway Vending Pty Ltd [2006] NSWSC 1216
Short v Crawley (No 45) [2013] NSWSC 1541

Category:

Procedural and other rulings

Parties:

Michael Stankovic (Applicant)
Peter Michael Magee T/as Armstrong Legal (Respondent)

Representation:

Counsel:
Applicant self-represented
Ms S Clemmett (Respondent)
Solicitors:
Applicant self-represented
Armstrong Legal (Respondent)

File Number(s):

CA 2013/263313

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2013-07-29 00:00:00

Before:

Judicial Registrar Howard

File Number(s):

DC 2013/134399

Judgment

1. BASTEN JA: The applicant seeks an extension of time within which to appeal and leave to appeal. The present summons for leave to appeal last came before this Court (differently constituted) on 12 February 2014. The matter was adjourned because the material to be relied upon by the applicant to demonstrate that he had at least an arguable defence was not before the Court. The applicant seeks to adjourn the proceedings further today. That application is resisted by the respondent on the basis that there have already been lengthy delays and adjournments in this court. The respondent's submission should be accepted; it is not appropriate to grant any further adjournment and the application for an extension of time within which to seek leave to appeal and to appeal should be disposed of today.

1. The respondent is the principal in a firm of solicitors which acted for the applicant in family law proceedings. The respondent commenced proceedings in the District Court in May 2013 seeking judgment for a liquidated debt for legal fees due under a costs agreement. On or about 19 June 2013 the respondent filed an affidavit and notice of motion affirming that the statement of claim had been served on 21 May 2013 and affirming the amount of the debt said to be owing. Assuming that the affidavit was executed on or about the date on which it was filed, some 30 days had expired since service of the statement of claim on the applicant.

1. It is not in dispute that the applicant had not filed and served a defence by 19 June 2013 and was therefore in default under the Uniform Civil Procedure Rules (NSW), r 16.2 for failure to comply with r 14.3(1).

1. The respondent was then entitled to apply for default judgment: r 16.3(1). Unless the court otherwise ordered, the application was not required to be served on the defendant in that court and could be dealt with in the absence of the parties: r 16.3(1A). However, to take steps for judgment two or three days after the period provided by the rules had expired (which with any minor explanation would probably have been extended by a court had such an order been sought) and without notice is at least imprudent: Northumbrian Ice-Cream Co Ltd v Breakaway Vending Pty Ltd [2006] NSWSC 1216 at [16] (Brereton J). That might be thought especially so for a solicitor suing an unrepresented former client.

1. It appears from the judgment given by the Judicial Registrar on 26 July 2013 that the application was dealt with by an Assistant Registrar, by entering judgment for the amount claimed. The judgment was entered on 21 June 2013. No reasons were given, even of the briefest kind, indicating that the judicial officer entering judgment had satisfied himself or herself as to the statutory preconditions for the exercise of the power.

1. On 12 July 2013 the applicant filed a notice of motion seeking that the default judgment be set aside. The Judicial Registrar dismissed the motion on the basis that it had not been filed within 14 days of the entry of judgment in compliance with r 36.16(3A). He noted that the court was not able to extend time: subr (3C).

1. There is an important issue as to whether the Registrar was correct to apply the rules in these circumstances: I refer to the judgment of White J in Short v Crawley (No 45) [2013] NSWSC 1541, particularly at [35] to which the court's attention was properly drawn by Ms Clemmett for the respondent. There is a document in the court's papers dated 1 July 2013 from the Registrar of the District Court, addressed to the applicant, which purports to be a "Notice of orders made". It referred to the order made on 21 June 2013, nine days before. When that notice was received by the applicant is unclear, but it appears that the applicant was given notice of the judgment no earlier than 11 days before he filed his notice of motion.

1. Although the Judicial Registrar concluded that the lapse of time from entry of judgment to filing of the notice of motion "prevents the Court from dealing with this motion" (reasons, p 3), he proceeded to deal with the matter further "on the alternative basis": reasons, p 4. He then addressed the questions which would arise if the limitation period had not been determinative. He accepted that there were grounds for the delay but stated that he was "unable to ascertain from the evidence and the submissions the actual defence": reasons, p 5. He was not satisfied that there would be a valid defence that had some prospects of success. Ms Clemmett for the respondent has submitted that the substance of any plausible defence is still unclear.

1. It may be that, absent a draft defence, the default judgment will not ultimately be set aside. Put very briefly, it appears that the applicant's complaint has two limbs. The first is that the work the subject of the solicitor's bill was not work carried out in accordance with his instructions and perhaps was undertaken contrary to those instructions. The second seems to be that payment of the solicitor's costs was subject to a condition inconsistent with the terms of the executed costs agreement which became impossible to perform by reason of some activity or inactivity of the respondent. Whether the applicant is able to resist paying for the work done on either of these bases is not a matter which needs to be considered further on this application. The nature of the defence or defences must at least be identified by way of a formal document.

1. The applicant filed the summons seeking leave to appeal on 29 August 2013 without, it would appear, previously filing a notice of intention to seek such leave. The judgment below having been delivered on Friday 26 July 2013, time would seem to have expired on Monday 26 August 2013. No prejudice is asserted or shown to have been caused by a delay of some three days. In my view the applicant should be granted the necessary extension of time. I would also grant the applicant leave to appeal, subject to a condition that a defence be lodged with the Registrar of this Court in an appropriate form.

1. For completeness I should note that Mr Stankovic, the applicant, handed up in court a notice of motion seeking orders both for a trial by jury in a certain respect and clarification of the meaning of the word 'dismiss' when a case is dismissed. There is an affidavit filed in support of that motion. It is not necessary for the court to deal with the motion today; it does not raise issues which are relevant to the application for leave to appeal. It is not appropriate, however, for the motion to remain on the papers and the court dismisses the motion.

1. Accordingly the court should make the following orders:

(1) Reject the applicant's motion to adjourn the proceedings in this Court.

(2) Extend time to seek leave to appeal to 29 August 2013.

(3) Grant the applicant leave to appeal subject to the applicant lodging within 21 days with the Registrar of this Court a draft defence in the form proposed to be relied on if the default judgment in the District Court is set aside and he is allowed to defend those costs proceedings.

(4) Grant both parties leave to approach the Registrar on three days' notice.

(5) The costs of the application shall be costs in the proceedings in this Court.

(6) Dismiss the notice of motion filed in court seeking orders for trial by jury and a declaration as to the meaning of "dismiss".

1. WARD JA: Having regard to the matters raised in Basten JA's reasons, I agree with the orders that his Honour proposes.

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Decision last updated: 12 June 2014