Wolfe v Breasley
[2011] VSCA 205
•15 July 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCI 2011 0024 |
| RICHARD WEBSTER WOLFE |
| v |
| GAYLE NICOLE BREASLEY |
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JUDGES: | BUCHANAN JA and SIFRIS AJA |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 15 July 2011 |
DATE OF JUDGMENT/ORDER: | 15 July 2011 |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 205 |
JUDGMENT APPEALED FROM: | Wolfe v Breasley [2010] VCC 1988 |
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APPEAL – Procedure – Extension of time within which to appeal from decision of Judge of the County Court of Victoria – County Court Act 1958 (Vic) s 74(2A) – Substantial delay in bringing appeal – No satisfactory explanation for delay – No arguable case demonstrated.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr O N Scoullar-Greig | George Erlichster |
| For the Respondent | Mr J J Isles with Mr D J Cole | Einsiedels Solicitors |
BUCHANAN JA:
I will ask Sifris AJA to deliver the first judgment in this matter.
SIFRIS AJA:
The applicant and the respondent were in a de facto relationship during the period October 1994 to November 2007. During the relationship, the parties purchased two properties, 17 Main Street, Pascoe Vale (‘17 Main Street’) and 19 Main Street, Pascoe Vale (‘19 Main Street’).
In 2009, after the relationship broke down, the respondent commenced proceedings in the County Court of Victoria seeking orders that the assets of the relationship be distributed between the parties pursuant to the Relationships Act 2008 (Vic)(‘De Facto Property Proceeding’).
On or about 26 August 2009 at a case conference, the parties signed a handwritten document styled 'Terms of Settlement' which purported to provide for the division of their net assets(‘the Agreement’).
On 16 February 2010, an order was made dismissing the De Facto Property Proceeding with a right of reinstatement.
Some time later, a dispute arose between the parties as to the enforceability of the Agreement. On 7 May 2010, the respondent successfully applied to have the De Facto Property Proceeding reinstated claiming, amongst other things, that the Agreement was vague and uncertain and therefore unenforceable. The De Facto Property Proceeding was set down for trial on 20 September 2010.
The trial commenced on 20 September 2010 but was adjourned at the request of the applicant who, on 15 October 2010, was given leave to commence a separate proceeding against the respondent in the County Court seeking declarations to the effect that the De Facto Property Proceeding had been settled in accordance with the Agreement (‘Terms of Settlement Proceeding’).
Judge Saccardo heard and determined the Terms of Settlement Proceeding. His Honour delivered reasons for judgment on 7 December 2010 (‘Judgment’) and dismissed the applicant's claim holding, amongst other things, that the Agreement was so vague and uncertain that it was unenforceable and should be set aside.
On 25 February 2011, the applicant filed a notice of appeal and the summons giving rise to this application. Under the County Court Act 1958 (Vic) any notice of appeal was required to be filed on or before 21 December 2011. Accordingly, the applicant requires and now seeks leave to appeal.
Section 74(2A) of the County Court Act1958 (Vic) provides as follows:
The Court of Appeal may extend the time within which an appeal may be brought, whether or not the time has expired and whether or not an application for extension of time has been made.
Consequently, the Court of Appeal has a discretion as to whether to extend time and grant leave to the applicant to file the notice of appeal.
The principles relevant to the exercise of the Court's discretion were recently summarised by this Court in the case of Gajic v Harp[1]. Macaulay AJA said the following:
The object of the statutory provision is to give the Court a discretion to extend time with a view to avoiding injustice. Whilst the factors to be taken into account are not confined, the typically the exercise of discretion will involve a consideration of four main factors
·the length of the delay
·the reasons for the delay
·the existence of an arguable case
·the extent of prejudice that would be suffered by the respondent if leave was granted.[2]
[1][2011] VSCA 132 (6 May 2011).
[2]Citations omitted.
Tate JA agreed with Macaulay AJA and in fact made similar statements in the case of Rees v County Court of Victoria[3] handed to the Court by Mr Isles this morning.
[3][2011] VSCA 179 (3 June 2011).
In the present case, the applicant filed his notice of appeal approximately ten weeks after the deadline had passed. This delay is quite substantial.[4]
[4]See Houstone & Anor v Singh & Anor [2006] ACTSC 33 (24 April 2006) where Connolly J considered a delay of 3 and a half months to be quite substantial. Cf Chargold Project Management Pty Ltd v Jalak Pty Ltd (t/a Webb Concretors) [2010] VSCA 210 (13 August 2010) where the delay was only 5 days.
The applicant submits that the delay was caused by his solicitor ceasing to act in the Terms of Settlement Proceeding on 7 December 2010. That an applicant did not have legal representation may, in some cases, be a sufficient explanation for a delay in lodging a notice of appeal.[5] However there is a dispute between the parties in the present case as to whether or not the applicant was legally represented during the period 7 December 2010 and 8 February 2011.
[5]See Heng v (Australia) Pty Ltd v Qi Wang [2008] FCA 1146 (20 August 2009), 2 [4].
The solicitor for the respondent, Richard Warren, has sworn an affidavit stating that Mr Scoullar‑Greig, counsel who appeared for the applicant in the De Facto Property Proceeding and the Terms of Settlement Proceeding and the application this morning, appeared in Court for the applicant on 13 December 2010. He further deposes that in an email dated 17 January 2011, Mr Scoullar‑Greig confirmed that he continued to act for the applicant. Accordingly, the material supports are finding that Mr Scoullar‑Greig continued to act for the applicant at least between 13 December 2010 and 17 January 2011.
This morning in Court, Mr Scoullar‑Greig confirmed that during December and January 2011, he, together with Mr Erlichster, focused on seeking the respondent's consent to Mr Erlichster being brought on to the record in the De Facto Property Proceeding which was due to the heard in February 2011.
The hearing of that proceeding assumed that there would be no appeal from the decision of the County Court handed down on 7 December. Indeed, from the Bar Table, Mr Scoullar‑Greig said that no consideration had been given to any appeal at that late stage.
Further, it should be noted that on 8 February 2011, at a directions hearing in the County Court, Judge Misso made orders that permitted Mr Erlichster to act for the applicant in the De Facto Property Proceeding and directed that the former solicitor release the file by 14 February 2011.
After that decision on 8 February 2011, a decision made well after the expiry of the time for bringing any proposed appeal from the Judgment in the Terms of Settlement Proceeding, a summons was issued seeking leave to commence an appeal out of time. That summons, heard before us this morning, is dated 25 February 2011.
Further, it is relevant that the applicant's present solicitor, Mr Erlichster represented the applicant in a proceeding before the Supreme Court of Victoria brought to restrain Permanent Custodians Ltd from selling 19 Main Street as mortgagee in possession (‘Supreme Court Proceeding’).
As acknowledged by the applicant, Mr Erlichster continued acting for him in the Supreme Court Proceeding during the relevant period, that is, December 2010 and January 2011. Further, during this time and as acknowledged by the applicant and referred to earlier, attempts were made to obtain the respondent's consent to Mr Erlichster acting in the terms of settlement proceeding.
Accordingly, it is, in my opinion, reasonable to assume that Mr Erlichster was aware of the judgment of Judge Saccardo and it may also be assumed that he was aware of the time limits within which an appeal would need to be commenced.
In the circumstances, no adequate or satisfactory reason has been provided for the quite substantial delay.
The next consideration is whether the applicant has established the existence of an arguable case. I am of the opinion that the applicant has not demonstrated any sufficiently arguable case or that the decision of the trial judge is attended by sufficient doubt so as to justify the granting of leave. I agree with the trial judge's finding that the Agreement is sufficiently vague and uncertain so as to be unenforceable.
In considering whether the parties have reached an agreement and in determining their presumed intention by reference to the words that they have used, the courts may, in appropriate cases, use various gap filling mechanisms such as implied terms in order to give meaning and effect to the agreement. However, it is not the task of the courts to write or rewrite the agreements for the parties. Where the gap filling is so extensive, this is obviously the logical consequence.
In the present case, the trial judge engaged in a detailed and considered analysis of the Agreement with a view to giving effect to the intention of the parties. His Honour was able, using principles of construction and implied terms, to resolve a number of uncertainties surrounding the Agreement. However, his Honour held that a number of matters were vague and uncertain and could not be overcome. I agree with his Honour in respect of the three matters that I will refer to.
First, the parties did not specify the mechanism for resolving a dispute about the reserve price for the sale of 17 Main Street. It is not for the Court to speculate what the parties intended in relation to the resolution of this matter. There are a number of reasonable and different alternatives. In respect of this important proposed term, there is no complete agreement and the agreement must fail for incompleteness.
The fact that at a later point this matter (the reserve price) proved not to be relevant is not a matter that the Court should take into account in resolving whether there is an arguable case about the certainty of the Agreement.
It is also relevant to note that no date was fixed for the sale although, with respect, his Honour correctly implied a relevant to term to such effect. However, as pointed out, there is a limit to the extent to which the Court is able to fill the gaps.
Secondly, the agreement does not provide a mechanism for establishing and determining which of the joint debts are proven or agreed. It merely states that evidence must be provided. This is an important matter given the structure of the Agreement is predicated on a division of the net value of the assets of the parties. It is not a minor or inessential term. Terms like this give the Agreement meaning.
The words 'for the purpose of negotiation’ and ‘yet to be proven' in paragraph 5 of the Agreement, appearing as they do, without setting out a mechanism, suggests that much was still to be agreed by the parties in relation to this important matter that underpins the Agreement.
Thirdly and related to the second matter, the Agreement does not deal with the obligations of the parties in managing the continuing outgoings, mortgage and debts associated with 19 Main Street in the period between execution of the Agreement and the sale of 17 Main Street. Again the agreement does not give any indication about the parties' intention in this regard.
In summary, the Agreement as a whole (and I have only focused on three matters) is not expressed with sufficient certainty so as to be enforceable. Further, it is apparent that in relation to other terms, such as chattels to be returned, further litigation could follow because of the uncertainty of the term. It is unfortunate but the Agreement is, in my opinion, more of a memorandum of understanding between the parties or what is commonly referred to as a heads of agreement, rather than a legally enforceable agreement.
In my opinion the applicant has not established an arguable case in respect of the proposed grounds of appeal directed to the trial judge's finding that the Agreement was vague and uncertain and therefore unenforceable.
In light of this conclusion, it is not necessary to deal with the other proposed grounds of appeal as even if they were made out, the appeal would nevertheless be futile.
Finally, I do not consider that his Honour was in error in implying the term that required 17 Main Street to be sold within a reasonable time. This did not happen, leaving aside any issue of suggested repudiation.
In view of the decision I have come to, it is strictly not necessary to deal with the question of prejudice to the respondent if leave was granted. In respect of the applicant's submission that he will suffer prejudice if leave is not granted, it should be noted that the matters that he identifies may be taken into account in the reinstated De Facto Property Proceeding.
In my view, the application for extension of time is without merit and should be refused.
BUCHANAN JA:
I agree.
The order of the Court is that the application to extend the time to apply for leave to appeal from the judgment and orders made by Judge Saccardo in the County Court on 7 December 2010 is dismissed.
(Discussion re costs)
In addition to the order which I have announced, there will be a further order that the costs of this application, including the cost of this day, the costs of the hearing on 1 April 2011 and the costs of the mediation held on 24 May 2011 be paid by the applicant.
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