Zabusky & Ors v Virgtel Limited - [2024] QCA 2

SUPREME COURT OF QUEENSLAND

CITATION:

Zabusky & Ors v Virgtel Limited [2024] QCA 2

PARTIES:

HARVEY ZABUSKY
(first applicant)
EREZ ZABUSKY
(second applicant)
D. A. WERBER LIMITED
(third applicant)
v
VIRGTEL LIMITED
(respondent)

FILE NO/S:

Appeal No 15827 of 2022
SC No 8849 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time/General Civil Appeal

ORIGINATING COURT:

Supreme Court at Rockhampton – [2021] QSC 17 (Crow J)

DELIVERED ON:

25 January 2024

DELIVERED AT:

Brisbane

HEARING DATE:

8 May 2023

JUDGES:

Mullins P and Bond JA and Davis J

ORDERS:

1. The application for extension of the time for filing and service of a notice of appeal is refused.

2. The applicants must pay the respondents’ costs of the application.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – where the applicants commenced proceedings to seek the enforcement of a Nigerian money judgment – where, on the application of the respondent, the proceedings were permanently stayed on the basis that Queensland was a clearly inappropriate forum because the respondent had no assets in Queensland – where the applicants had one month to file a notice of appeal – where the applicants chose not to appeal and to pursue a different procedural course in an effort to have the permanent stay removed – where that course failed – where the applicants seek an order that the time for filing and service of a notice of appeal be extended – whether the Court should grant the application

Uniform Civil Procedure Rules 1999 (Qld), r 5, r 7, r 748

Cooper v Williams [1963] 2 QB 567, cited
Osachy v O'Sachy[2013] QCA 212, applied
Voth v Milandra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55, cited
Zabusky & Ors v Virgtel Limited[2022] QCA 223, considered
Zabusky & Ors v Virgtel Limited [2022] QSC 46, considered

COUNSEL:

T Brennan SC, with R Scheelings, for the applicants
S S Monks for the respondent

SOLICITORS:

Kenmore Mediation & Law Centre for the applicants
James Conomos Lawyers for the respondent

MULLINS P: I agree with Bond JA.
BOND JA: By a judgment published on 12 February 2021, and on the application of the respondent (Virgtel), Crow J permanently stayed a proceeding which the applicants had commenced in August 2020 and by which the applicants had sought to enforce a Nigerian money judgment. Crow J accepted Virgtel’s argument that Queensland was a clearly inappropriate forum because Virgtel had no assets in Queensland and, therefore, the proceeding had no utility.
If they wished to appeal, the applicants were required to file a notice of appeal on or before 12 March 2021. They did not do so. Instead, and on senior counsel’s advice, they made the forensic decision to chart a different course, namely to wait until a contemplated material change to Virgtel’s circumstances had occurred and then, based on those changed circumstances, to bring an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] QCA 2
Decision Date: 25 January 2024

CaseChat Overview and Summary

In the case of Zabusky & Ors v Virgtel Limited, the applicants sought to enforce a Nigerian money judgment in Queensland. The Federal High Court of Nigeria had ordered Virgtel to pay the applicants a sum of ₦1,386,537,386 plus costs. The applicants filed a claim in the Supreme Court of Queensland, but Virgtel applied to have the proceedings permanently stayed, arguing that Queensland was an inappropriate forum as the company had no assets in the state. The primary judge permanently stayed the proceedings, and the applicants did not appeal within the one-month time limit. Instead, they pursued a different procedural course to have the stay removed, which ultimately failed. The applicants then sought an extension of time to appeal the primary judge's decision, which they now seek to have the appeal heard.

The legal issues before the Court were whether the applicants' explanation for the delay in filing the notice of appeal was satisfactory and whether the extension of time should be granted considering the public interest in the timely and efficient conduct of civil litigation. The Court considered factors such as the explanation for the delay, the merits of the appeal, and the potential for unsettling established practices. The Court also noted that the overriding objective of the rules is to facilitate the just and expeditious resolution of real issues in civil proceedings at a minimum of expense.

The Court found that the applicants' explanation for the delay was not satisfactory and that the extension of time should not be granted. The Court emphasised the importance of adhering to time limits in civil litigation and the public interest in the efficient conduct of legal proceedings. The Court also noted that the applicants had pursued an alternative procedural course, which had failed, and that there was no merit in the appeal. The Court concluded that the extension of time should be refused and ordered that the applicants pay the respondents' costs of the application.

Orders

Orders of the court

1. The application for extension of the time for filing and service of a notice of appeal is refused.

2. The applicants must pay the respondents’ costs of the application.

Background

Background to the litigation

For the following reasons, that application must be refusedBackground facts On 28 May 2019, the Federal High Court of Nigeria ordered Virgtel to pay the applicants a sum of ₦1,386,537,386 together with a further sum of ₦60 million for costs.[1] The Nigerian Naira is the official currency of Nigeria. As at the date of the judgment by Crow J, 1 Nigerian Naira converted to about 0.0035 Australian dollars, so at that time it appeared that the value of the judgment was of the order of $4.8 million for the principal sum and $210,000 for costs.[1]Reasons in the primary judgment at [3]. The applicants subsequently sought to enforce the Nigerian judgment in Queensland. On 7 August 2020, the applicants were granted leave to serve the originating process outside of Australia in accordance with r 126 of the UCPR. On 17 August 2020, the applicants filed a claim and statement of claim.[2][2]ARB1 at 14 to 21. On 15 October 2020, having been served with the originating process, Virgtel filed a conditional notice of intention to defend.[3] On 29 October 2020, Virgtel filed an application to stay the applicants’ enforcement action.[3]ARB1 at 22. Before Crow J, Virgtel submitted that the company was a “mere ‘empty shell’”,[4] that it had no assets in Queensland and that it carried on no business in Queensland or elsewhere in Australia,[5] thus rendering Queensland an inappropriate forum in which to enforce the Nigerian judgment.[4]ARB2 at 36.[5]ARB2 at 205. The applicants opposed Virgtel’s application, arguing that Virgtel had assets by way of its interest in two particular funds of monies held on trust. It is convenient to refer to those funds as the first trust fund and the second trust fund. Some further background must be set out to explain how those funds came to exist. The first trust fund came to existence in this way:(a)In proceeding 6547/05 Virgtel and three other applicants (the van Leeuwen interests) sued Mr Harvey Zabusky, Mr Erez Zabusky (who are the first and second applicants before this Court) and four other respondents for damages and an account in respect of services which Virgtel alleged had been provided in Nigeria. It is convenient to refer to the respondents in that litigation as the Zabusky interests.(b)Interlocutory orders made by Daubney J resulted in Mr Hendrik van Leeuwen and his wife Ms Maria van Hal satisfying orders requiring the van Leeuwen interests to pay security for costs and security for an undertaking as to damages by making three separate payments totalling about $650,000 into the trust account of the solicitors who acted for the Virgtel and the van Leeuwen interests, there to be held on trust. Virgtel itself had not been the source of any of those monies.(c)Those monies are still held on trust, presumably awaiting an order by the Court directing the manner by which they may be dealt with. The second trust fund came to existence in this way: Before Crow J Virgtel submitted that it had no interest in either of the trust funds.[6][6]ARB2 at 36.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The application presently before the Court was filed 16 December 2022.Consideration Rules 7 and 748 of the UCPR are in the following terms:“7 Extending and shortening time(1)The court may, at any time, extend a time set under these rules or by order.(2)If a time set under these rules or by order, including a time for service, has not ended, the court may shorten the time.Note—A time allowed or provided for under these rules is calculated according to the Acts Interpretation Act 1954, section 38 (Reckoning of time).748Time for appealingA notice of appeal must, unless the Court of Appeal orders otherwise—(a)be filed within 28 days after the date of the decision appealed from; and(b)be served as soon as practicable on all other parties to the appeal.” Rule 7 is a general power and r 748 is the power specifically applicable to the applicants’ circumstances. Obviously, those powers, like all discretions conferred by the rules, are to be applied by the Courts bearing firmly in mind the provisions of r 5, namely:“5 Philosophy—overriding obligations of parties and court(1)The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.(2)Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.(3)In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.(4)The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.Example—The court may dismiss a proceeding or impose a sanction as to costs, if, in breach of the implied undertaking, a plaintiff fails to proceed as required by these rules or an order of the court.” In Osachy v O'Sachy [2013] QCA 212, Gotterson JA (with whom de Jersey CJ and Mullins J agreed), observed in relation to an application under r 748:“It is well settled that in considering applications of this kind, factors such as the explanation for the failure to commence within time; action taken by the applicant, such as informal notice to the respondent of the intention to appeal; prejudice to the respondent; potential for unsettling other people or established practices; the merits of the appeal which it is sought to institute and general considerations of fairness are all relevant factors to the exercise of the discretion.” His Honour’s remarks plainly were not intended to be exhaustive of the considerations which are relevant to an exercise of the discretion of the present kind. Nevertheless, it is as well to observe explicitly that considerations also necessarily relevant to the exercise of the present discretion include these related considerations (which may well overlap with some of the matters to which his Honour referred):[13](a)the philosophy stated in r 5;(b)the public interest in the timely, cost-effective and efficient conduct of modern civil litigation; and(c)the maintenance of public confidence in the administration of justice.[13]UBS AG v Tyne (2018) 265 CLR 77 at [38]; Aon Risk Services Australia Ltd v Australian NationalUniversity (2009) 239 CLR 175 at [34].

CITATION:	Zabusky & Ors v Virgtel Limited [2024] QCA 2
PARTIES:	HARVEY ZABUSKY (first applicant) EREZ ZABUSKY (second applicant) D. A. WERBER LIMITED (third applicant) v VIRGTEL LIMITED (respondent)
FILE NO/S:	Appeal No 15827 of 2022 SC No 8849 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension of Time/General Civil Appeal
ORIGINATING COURT:	Supreme Court at Rockhampton – [2021] QSC 17 (Crow J)
DELIVERED ON:	25 January 2024
DELIVERED AT:	Brisbane
HEARING DATE:	8 May 2023
JUDGES:	Mullins P and Bond JA and Davis J
ORDERS:	1. The application for extension of the time for filing and service of a notice of appeal is refused. 2. The applicants must pay the respondents’ costs of the application.
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – where the applicants commenced proceedings to seek the enforcement of a Nigerian money judgment – where, on the application of the respondent, the proceedings were permanently stayed on the basis that Queensland was a clearly inappropriate forum because the respondent had no assets in Queensland – where the applicants had one month to file a notice of appeal – where the applicants chose not to appeal and to pursue a different procedural course in an effort to have the permanent stay removed – where that course failed – where the applicants seek an order that the time for filing and service of a notice of appeal be extended – whether the Court should grant the application Uniform Civil Procedure Rules 1999 (Qld), r 5, r 7, r 748 Cooper v Williams [1963] 2 QB 567, cited Osachy v O'Sachy[2013] QCA 212, applied Voth v Milandra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55, cited Zabusky & Ors v Virgtel Limited[2022] QCA 223, considered Zabusky & Ors v Virgtel Limited [2022] QSC 46, considered
COUNSEL:	T Brennan SC, with R Scheelings, for the applicants S S Monks for the respondent
SOLICITORS:	Kenmore Mediation & Law Centre for the applicants James Conomos Lawyers for the respondent