ARGYROU v MAX GLASS PTY LTD SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL CLARKE JA 16 August 1993 [1993] NSWCA 7 Clarke JA. (Re application for extension of time to file notice of appeal) On 24 February 1993 Judge Graham gave judgment in favour of the opponent who was the plaintiff below. In that judgment he awarded the plaintiff $4871.69 with interest in the sum of $9,330.67 making a total of $14,202.36. The transaction out of which the claim arose occurred in 1981 and concerned the sale by the opponent of Glulam timber to the claimants for use in a kitchen, laundry and bathroom in premises in Kent Street, Sydney. At the trial the claimants did not deny the debt but relied essentially upon a cross-claim in which they asserted that the Glulam timber supplied by the opponent had been defective 'in that it curved after instalment'. That was the only defect which was alleged in the pleadings. In his Honour's judgment he said that it was common ground that when the laundry bench tops were inspected, they were found to be cupped. His Honour went on to describe cupping as a bowing of the board which, according to the experts, was comparable to a moisture imbalance in the timber. There being no question that there was a cupping of the Glulam when the bench tops were inspected his Honour's attention wasdirected to the causes of that cupping. The claimants asserted that the causes were moisture imbalance at the time of delivery. The opponent responded that there were two possible causes for the condition, both of which were the responsibility of the claimants. His Honour did not form a favourable view of the witnesses called by the claimants saying that both witnesses were quite unsatisfactory. In the end his Honour concluded that the claimants had failed to discharge the onus of showing that the bench tops were defective when delivered. Indeed his Honour went further and said that he thought the probabilities favoured the conclusion that either the claimants had failed to seal one side of the Glulam bench tops or else had allowed moisture to penetrate the Glulam after delivery. The claimants now seek an extension of time in which to file a notice of appeal from his Honour's decision. They do not assert that his Honour was in error upon the evidence led before him. What they say is that there is fresh evidence which should be admitted on appeal and which would lead most probably to a verdict in their favour. I will put to one side for a moment that fresh evidence and direct my attention initially to the question of an explanation for the delay in the bringing of the present application. His Honour's judgment was given on 24 February 1993 and the application for an extension of time was not filed until 2 July 1993, over four months later. The evidence does not disclose any explanation for the delay between the date of judgment and early May. It does demonstrate that during May attention was given to the obtaining of an expert's report in relation to a piece of timber and I 2 UNREPORTED JUDGMENTS am prepared to accept that that period of delay which was of about one month has been explained. However, there is no explanation why nothing happened of any relevance in June. Ihave permitted counsel for the claimants, probably wrongly, to explain to me that the expert was sick for about three weeks before he responded to the claimants" request on 10 May. Even if one accepts that explanation as justifying the 3 week period one sees that there is still no explanation for the month of March and early April. The courts have in years past been very lenient in dealing with applications for an extension of time but there are indications that parties can no longer expect such a lenient approach, particularly as on one view the extension of indulgences to parties adds to the cost of litigation. However, I am not disposed in this case to adopt a strict approach. I think some lenience should be permitted, notwithstanding the delay which has not been explained in this case is very significant and presents as a difficult hurdle for the claimants to overcome. There is, however, a more fundamental objection to the application and that is that there is no point in granting it for the reason that the appeal must ultimately fail. This ground concerns the nature of the fresh evidence. That is deposed to in the affidavit of Mr Andrew Argyrou and is supported by the evidence of his brother. That evidence was objected to but I propose to admit it for it gives the foundation of the application. What Mr Andrew Argyrou says is that after his Honour gave judgment Mr Nicklin, .. an employee of and one of the witnesses who gave evidence for the plaintiffs handed me a piece of timber and said to me, "This is a piece from the timber we supplied you with. We picked up this piece of timber from your site when you made the complaint that the timber was defective. It's sealed on one side only." Accepting for the moment that those words were used it is necessary to examine the use to which the claimants seek to put that conversation. Before doing so I should add that Mr Nicklin was at the time he made this statement a director of the opponent and it may be arguable that his statement is admissible against the opponent. The claimants" witnesses, having heard that statement, arranged some months later, as I explained, to have the piece of timber which had been handed to them examined by a Mr Ogg of the Harcros Chemical Group. Mr Ogg's immediate response was quite equivocal but eventually he said that the end section of the timber had delaminated along about 85 per cent of the exposed surface area and he concluded that the sample showed an adhesion problem. He then went on to explain likely causes of the adhesion failure. The timber was somewhat later examined by Professor J K Harkin of Unisearch and in his report dated 30 June 1993 he referred to adhesive failure on some of the joint sections and gave explanations for that adhesive problem. Thus it is that the claimants seek to lead fresh evidence on the appeal which would lead, in their view, to a different verdict. Mr Boyd, who appeared for the opponent, submitted that if one turned one's attention to three conditions necessary for the admissibility of fresh evidence one would see that they were not satisfied in this case. He submitted that there is no evidence of any attempt by the claimants to get the evidence now sought to be led prior to the hearing. He submitted that there was not a high degree of probability a different verdict would result and he said that given the URJ ARGYROU v MAX GLASS PTY LTD (Clarke JA) 3 unsatisfactory nature of the evidence by the two Messrs Argyrou it was unlikely that new evidence would be regarded as apparently credible. There are, as I see it, three significant problems with the case mounted by the claimants. In saying that I am putting to one side the lack of evidence of any attempt to get material of the nature now sought to be led prior to the trial. It appears that the building in which the work was done had been demolished many years before the case and given that the opponent only instituted proceedings in 1987 it may be that it was very difficult for the claimants to secure that evidence. The real problems, however, surround the evidence relied upon concerning the events after judgment was given and the difference between the evidence now sought to be led and the case which was apparently made at the trial. Mr Nicklin has given evidence contradicting the versions put forward by Messrs Argyrou as to what occurred after judgment. He says that he said to them that the Glulam had not been sealed on the bottom. That, of course, was also conceded by Andrew Argyrou and is a significant statement given that the opponent was asserting that that was the cause of the problem and that was a matter for which the claimants were responsible. He also said that he told them that he thought the timber came from a site in Kent Street. He gave it to them because he thought they had made it clear in their evidence that they did not know what brush box looked like, nor what Glulam looked like when it was sealed on one side. He also said that he had been handed the piece of timber by a Mr Bob Byrne who said he had received it from another person who had got it from a demolition site in Kent Street. Mr Nicklin's evidence is supported by that of Mr Glass and both of them recall that Mr Nicklin said that he would have liked to have tendered the piece of timber in the trial but could not because they could not prove it or, more accurately, could not prove where it came from. None of these witnesses has been cross-examined and it is impossible for me to form a conclusion as to who should be accepted. For present purposes, however, I should observe that the probabilities strongly favour the version given by Mr Nicklin. I can see no reason why he would have handed to the opposition a piece of timber which, on their evidence, establishes their case. So I start with the proposition that there is a very real contest of fact which may, if resolved in the way that it is likely to be resolved, lead to the rejection of the fresh evidence at the outset unless it can be shown, on the probabilities, the piece of timber came from the site. Then obviously it would have no evidentiary effect at all. The second problem is that the evidence at the trial concerned what was described in the cross-claim as curving of the Glulam and was described by his Honour as cupping of the Glulam. It seems to me plain that these conditions which were described by his Honour are different from a failure of adhesion. Certainly, there is nothing in the evidence before me which demonstrates any relationship between the two and nothing to support counsel's assertion that adhesion causes cupping. Indeed an examination of his Honour's judgment would indicate that no one was asserting that the cupping had resulted from bad adhesion. What, therefore, seems to be the approach of the claimants is to endeavour to lead fresh evidence to prove defect in the timber which was not raised in the trial. The third difficulty is one to which I earlier adverted and that is the lack of an explanation for the lengthy delay between judgment and application. It seems to me that the claim here by the claimants is a very tenuous one at best. At worst 4 UNREPORTED JUDGMENTS it is hopeless. I am faced, therefore, with a situation where there has been a hearing before a judge relating to a contract in 1981 and a judgment in favour of one party for a very small sum of money and a belated application for a new trial. In all the circumstances of this case it seems to me that the interests of justice are best served by declining to grant the application and thereby declining to put the parties to the additional expense of further hearings which, as at present advised, seem to me to be highly unlikely to lead to any different result. There are questions of admissibility which may cause the appeal, if it is allowed to go forward, to fail at the outset but I have resolved those questions broadly in favour of the claimants. The grounds upon which I have acted are the lack of explanation of delay, the difference between the evidence now led and the issues litigated in the trial, the small amount of the judgment, and the imbalance between that and the costs already and likely to be incurred and the fact that we are dealing now with events which occurred in 1981. In all the circumstances I dismiss the application with costs. Orders accordingly.