Sultans Nightclub v Saeedi Investments Pty Ltd
[2015] ACTCA 66
•18 December 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Sultans Nightclub v Saeedi Investments Pty Ltd and Anor |
Citation: | [2015] ACTCA 66 |
Hearing Date(s): | 17 December 2015 |
DecisionDate: | 18 December 2015 |
Before: | Walmsley AJ |
Decision: | 1) The application for leave to appeal out of time is dismissed. 2) The Applicant pay the Respondents’ costs of the application. |
Catchwords: | APPEAL – Jurisdiction, practice and procedure – leave to appeal out of time – leave to appeal to the Court of Appeal – explanation for delay – prospects of success |
Legislation Cited: | Court Procedures Rules 2006 (ACT), rr 5310, 5311, 5312 |
Cases Cited: | WSOL v John James Memorial Hospital [2015] ACTSC 378 |
Parties: | Sultans Nightclub (Appellant) Saeedi Investments Pty Ltd (First Respondent) Briach Pty Ltd (Second Respondent) Zesto Discretionary Trust (Third Respondent) |
Representation: | Counsel Mr M Ryan (Self-represented) (Appellant) Mr D Robens (Respondents) |
| Solicitors Mr M Ryan (Self-represented) (Appellant) Kamy Saeedi Law (Respondents) | |
File Number: | ACTCA 47 of 2015 |
Decision under appeal: | Court: ACT Supreme Court Before: Burns J Date of Decision: 20 October 2015 Case Title: Sultans Nightclub v Saeedi Investments Pty Ltd and Anor Court File Number: SCA 82 of 2015 |
WALMSLEY AJ:
The Issue
The question to be decided is whether Sultans Nightclub Pty Ltd, (‘Sultans’), should have leave to appeal out of time from a decision of Burns J given on Tuesday, 20 October 2015.
The Background
The respondents have a lease of premises at 122 Alinga Street, Civic Centre. They sublet the premises to Sultans on 19 March 2010. Sultans operated a nightclub from the premises. The premises consisted of two areas and there was a separate sub-lease for each. One sub-lease came to an end on 18 December 2010 and the other on 18 March 2012. After the sub-leases came to an end, Sultans continued to occupy month-to-month.
There came a time when the respondents served a termination notice. Sultans disputed that the notice was validly given but the Magistrates Court ultimately decided it had been validly given. The sub-leases came to an end on 29 August 2014.
The parties remained in dispute about unpaid rent; Sultans claimed to have overpaid rent and sought a rent reduction for a period when it said it could not properly use the premises by reason of their allegedly poor condition. For the same reason, Sultans also claimed for lost revenue.
The respondents cross-claimed for unpaid rent.
The claim for overpaid rent brought by Sultans was $4,339.72. The claim for rent arrears was $144,109.48.
Mr M Ryan, the sole director of Sultans, represented Sultans’ interests on the hearing in the Magistrates Court. There the claim for overpaid rent failed for reasons which were explained by the magistrate including that the sub-lease provided that rent be paid even when the premises had been damaged, absent an order from the Magistrates Court, and there was apparently no Magistrates Court order.
A claim by Mr Ryan that Sultans had contracted out of the clear words of the sub-lease or sub-leases was dismissed by the magistrate.
Further, there was no express covenant to repair in the sub-lease and Sultans was found to have been aware, in any event, of some defects in the premises before going in. Additionally, it was found that the incurring of damage was ongoing at the time Sultans went into possession. In any event, the respondents, it was found, carried out a number of repairs and some damage was found to have been caused by customers of Sultans.
Sultans made an application too for rent abatement up to the time of the termination notice. The Magistrate examined that claim and, for reasons she expressed, found that Sultans had not established a case for abatement nor, for reasons she gave, was Sultans entitled to any compensation for any of its claims.
Accordingly, her Honour dismissed all claims. As to the cross-claim for rent, she found for the respondents and entered judgment for $144,109.48.
A statutory claim or demand threatening to wind up Sultans was served on 10 October 2014. There was no evidence before me as to whether or not it was satisfied but I infer it was not.
There was no evidence before me as to whether the respondents to this application ever received an application for an injunction to restrain them from presenting a winding up application. However, it appears that when the judgment debt against Sultans was unsatisfied, the respondents brought action against Mr Ryan, who had guaranteed payment of Sultans’ obligations under the sub‑leases.
That Statement of Claim was issued in the Magistrates Court on 20 April 2015. Mr Ryan filed a defence on 10 June 2015 and on 23 September 2015 he filed an amended defence and a counterclaim. Then on 25 September 2015, almost thirteen months out of time, Sultans lodged an application for leave to appeal out of time from the Magistrate Court’s orders.
The appeal from the Magistrates Court
The Notice of Appeal filed on 25 September 2015, has as the only order or part order appealed from, the order against Sultans to pay the rental arrears of $144,109.48. In paragraph 3 of the Notice of Appeal it is said Sultans will put evidence before the court on appeal. This evidence, as described, goes only to Sultans’ claims which were dismissed by the Magistrate. The ground of appeal is relevantly as follows:
Specific evidence was presented before the Magistrate that was in conflict with the Magistrate’s final decision.
An Amended Notice of Appeal was purportedly filed on 16 October 2015. Its relevant addition to the original Notice of Appeal, somewhat delphically, says:
Third parties undiscovered documents and other professional opinion that were not presented in evidence and may alter the final judgment.
On 25 September 2015, Mr Ryan swore an affidavit in support of the leave application. His evidence did not say anything of the merits of the appeal. Insofar as it went to reasons why the Notice of Appeal was lodged sixteen months late, he said he had financially difficulties in paying for the transcript.
It is apparent from a letter from ACT Pro Bono Clearing House of 22 September 2014 (a firm or organisation which then acted for Sultans, through Mr Ryan), that he and Sultans were well aware by then of the need to file an appeal by 25 September 2014.
An extension of time to appeal was that day requested by the Clearing House of the Supreme Court registry; but consent was not given. Sultans were told that by letter of 26 September 2014.
Mr Ryan swore that he received the transcript on 13 February 2015 but gave no explanation for not lodging a notice of appeal earlier.
In an affidavit of 17 October 2015 Mr Ryan gave some additional information concerning the hearing before the magistrate. He asserted some reasons why the magistrate was wrong:
[21] As to the Chief Magistrates (sic) judgment for $144,109.48 I believe this is an error as the lease for area two was terminated in writing (email) after the 9 months. The email was entered into evidence before Chief Magistrate Walker due to non-compliance with issues relating to the leased premises. See annexure 2.
[22] As a result the company has been ordered to pay a (sic) extra 43% or thereabouts on the judgment amount representing leased area two.
[23] The premises were a number of months later re-occupied by Clubhouse, a business owned by Krave Nightclub Pty Ltd. Not Sultans Pty Ltd.
[24] The clubhouse promotional page can be noted on Facebook to this current day.
[25] Krave Nightclub Pty Ltd occupied leased area 1 thruogh out (sic) the total period of the Sultans lease.
[26] Krave nightclub advertising can also be seen on Facebook under various Krave listings including phone advertising.
[27] The owners were aware of this situation.
Whether any of the issues in those paragraphs, whatever they mean, were in fact raised before the magistrate is not apparent from any document before me.
On 20 October 2015 the application to extend time to lodge the appeal to the Supreme Court was heard by Burns J. When the matter came before his Honour, Mr Ryan made submissions on issues he had raised before the magistrate but which were not pleaded. When his Honour directed Mr Ryan’s attention to the main issue, that is why leave to appeal from the Magistrates Court should be given when the notice had been filed so late, Mr Ryan said “basically the reason is financial”, and that having spent a considerable sum of money on lawyers, he wanted his day in court.
After hearing the parties, his Honour said:
Effectively Mr Ryan in his affidavit has said that the reason for the failure to commence appeal proceedings within time was the core financial position of the company. As a director of the company, Mr Ryan swore the affidavit but he has not included any significant information about his personal financial position. I may say that I am not persuaded by the contents of the affidavit that there is any legitimate reason demonstrated for the failure of the applicant to appeal within the times prescribed by the legislation. There is a very significant public interest in ensuring that litigation comes to an end. The delay in this matter is really quite extraordinary and there has been in my opinion no real explanation put forward for the delay such as to justify the granting of leave to appeal out of time in the present case and the application for leave to appeal out of time will be refused.
His Honour ordered that Sultans pay the costs of the respondents.
The application for leave to appeal to the Court of Appeal
Sultans then purported to file a Notice of Appeal from Burns J’s orders. The Notice said that Sultans would seek to put the same and further evidence before the Court of Appeal. Reference was made to some arguments which may or may not have been put to the Magistrates Court as to the merits but which could, on no basis, be described as new or based on evidence which had only become available to Sultans after the Magistrates Court judgment. For example there is this statement:
I believe (the Magistrate) over calculated the payment of rent by approximately 43%.
There is no elaboration on that assertion other than his belief. The balance of the evidence the Notice said would be called goes to matters which were decided against Sultans by the Magistrates Court. The grounds of appeal in the purported Notice of Appeal include:
Specific evidence was presented before the Magistrate initially that was in conflict with the Magistrates final decision (sic).
As Burns J’s decision was interlocutory, the Court of Appeal must give leave if Sultans is to have the right to appeal. The leave application was due seven days after the decision appealed from but, in fact, was filed 28 days after (see rr 5310 to 5312 Court Procedures Rules 2006 (ACT)). From an affidavit sworn by Mr Ryan on 17 December 2015, though it is not well expressed, I conclude Mr Ryan did not know that seven days was the time limit and he had been led by others, unspecified, to believe that the period was in fact 28 days.
Consideration
I will now turn to consider whether, as Mr Ryan submitted yesterday, I should grant leave to Sultans to appeal from Burns J’s decision out of time.
In forming the views I have on the matter, I have taken into account the difficulties for the applicant through not having legal representation and through being represented by Mr Ryan who, as I earlier noted, is the sole director. In WSOL v John James Memorial Hospital [2015] ACTSC 378 at [11], Refshauge J nominated these as the relevant principles when addressing an application for leave to appeal out of time:
1. Such applications should only be granted if, having regard to the important value of finality in litigation and the need for time limits to be respected, it is proper to do so.
2. There should be an explanation for the delay, as to which any action, other than the appeal, that has been taken by the applicant is relevant.
3. The court must consider any prejudice to the respondent in defending the proceedings that is caused by the delay and any such prejudice will tell against the extension.
4. The mere absence of prejudice is not enough to justify the extension of time.
5. The merits of the appeal itself must be taken into account in deciding whether an extension of time should be granted.
6. Nevertheless, the application is to be determined by the court’s view of the demands of justice in accordance with a broad judicial discretion and not by the mere application of a verbal formula.
7. In particular, the court will look, above all else, to determine that there has not been and will not be, if the application is refused, a miscarriage of justice, which will always be an overriding consideration.
I consider it would be futile to grant leave to appeal against Burns J’s judgment. I accept that there is an explanation for the delay of three weeks in filing the Notice of Appeal to the Court of Appeal but, assuming leave were granted, I ask myself what are the prospects of success in appealing against Burns J’s decision? There was no explanation before his Honour for the lengthy delay in filing the appeal other than, in a general sense, financial problems.
Mr Ryan has pointed out when making submissions to me no error in his Honour’s approach. The Notice of Appeal says nothing of any error by his Honour. It only attempts to deal, yet again, with matters which were initially before the magistrate and in no clear way so as to show even a glimmer of a prospect of success of the appeal should it ever be heard on its merits.
There is a need for finality of litigation, as Refshauge J noted, and in my view there is a need for finality of this litigation.
There was no argument by the respondents on the issues of prejudice to them but there is an obvious prejudice in incurring costs of representation in defending a hopeless case.
If I refuse this application I am far from persuaded that there will be any miscarriage of justice. That consideration, as Refshauge J noted, will always be an overriding consideration.
In those circumstances I dismiss the application for leave to appeal against the orders of Burns J. I order the applicant to pay the costs of the respondents.
| I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Walmsley. Associate: Date: 15 February 2016 |
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