TOTEV v SFAR t/as SFAR FINANCIAL GROUP & Anor [2004] NSWCA 213

New South Wales Court of Appeal

CITATION : TOTEV v SFAR t/as SFAR FINANCIAL GROUP & Anor [2004] NSWCA 213 HEARING DATE(S) : 15 June 2004 JUDGMENT DATE : 15 June 2004

JUDGMENT OF : Mason P at 1; Giles JA at 22; Stein AJA at 23 DECISION : Summons for leave dismissed.

CATCHWORDS : Application for leave to appeal - refusal of application to file further evidence - subject of appeal no longer in issue - only serious quesiton is costs - whether Court should determine appellate proceedings in order to resolve question of costs - summons for leave dismissed. (ND) PARTIES : Vasil TOTEV v Michael SFAR t/as SFAR FINANCIAL GROPU & Anor FILE NUMBER(S) : CA 40990/03 COUNSEL : Appellant: In person Respondent: P Beale SOLICITORS : Appellant: In person Respondent: McGrath Dicembre & Co, Fairfield

LOWER COURT District Court JURISDICTION : LOWER COURT DC 14079/01 FILE NUMBER(S) : LOWER COURT Bowden ADCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40990/03

MASON P GILES JA STEIN AJA

Tuesday 15 June 2004 Vasil TOTEV v Michael SFAR t/as SFAR FINANCIAL GROUP & Anor JUDGMENT

1 MASON P: This is an application for leave to appeal against procedural directions given by Bowden DCJ in the course of case management of proceedings in the Commercial List of the District Court. 2 The claimant was initially represented by lawyers but by the time the directions under challenge were given he was representing himself. 3 There had been earlier directions for filing of witness statements which had not been complied with. 4 There was a show cause directions hearing before Bowden DCJ on 18 August 2003. Bowden DCJ ordered that the matter be listed for hearing on 22 October 2003 with an estimate of three days. He directed that the matter proceed on the basis of evidence presently served. In effect, he refused the claimant's application for a further opportunity to file witness reports and statements. 5 Initially an appeal was filed but when the claimant realised that he needed leave to appeal, he filed the summons for leave to appeal which is before us today. The matter has been directed to be heard as a rolled up proceeding in which, if the Court were disposed to grant leave to appeal, the matter could proceed as an appeal. The claimant has represented himself. 6 Early in the proceedings today, there was discussion which confirmed that subsequent to the hearing before Bowden DCJ there had been further proceedings in the District Court, the effect of which was that the additional evidence that the claimant wishes to put on has been filed in the District Court. The matter therefore is now ready for the trial in the District Court that the claimant is anxious to bring on as soon as practicable. 7 There is a continuing difficulty in relation to a stay order. On 21 November 2003, Rolfe DCJ made an order vacating the then adjourned hearing date of the District Court trial which was then fixed for 25 November. There had been a hearing date fixed for 22 October and that had not proceeded on that day because one of the plaintiff's key witnesses was overseas. A fresh date had been fixed for 25 November and it was that date that was vacated by Rolfe DCJ in his orders of 21 November 2003. It was clear then that the plaintiff, the claimant before us, wished to put on further evidence and Rolfe DCJ was prepared to allow him to do so. Subsequently, that evidence was filed in the District Court. Rolfe DCJ made orders vacating the hearing date but he also made orders adverse to the claimant about the costs of the hearing before him on 14 November and 21 November. He also ordered the plaintiff to pay the defendant's costs thrown away as a consequence of the hearing on 25 November being vacated. The plaintiff was ordered to pay $5000 on account of those costs by a certain date and that sum has been paid. 8 Rolfe DCJ directed that the proceedings be stayed pending compliance with the costs orders he imposed and the direction he gave about serving valuation evidence. 9 The costs issue has not been resolved and there is to be some hearing in the nature of an assessment proceeding. 10 The correctness of Rolfe DCJ's orders is not before this Court in these proceedings. I say that just as a matter of record, I am not suggesting any basis for doubting the correctness of those orders from the material that we have heard today. 11 When it became apparent that the claimant has now, albeit belatedly, been permitted to file the statements of evidence and reports on which he wishes to rely in the District Court, it appeared to the Court that there may be little or no utility in proceeding with the application for leave to appeal challenging Bowden DCJ's orders and directions of 18 August 2003. With one qualification, the claimant accepted this and he indicated that subject to the costs issues he did not wish to proceed with the challenge. 12 The written submissions he had filed in this Court included two submissions recounting a conversation he had had with the opponent's solicitor on 29 March 2004 which, on one interpretation of the statement, indicated that he was signalling by 29 March 2004 at the latest that he did not see much point in going ahead with the challenge in this Court to the orders made by Bowden DCJ. His version of that conversation was supported by affidavit and it had not been put in issue in written submissions before today, when we were told that there is a dispute as to some of the conversation on the part of the opponent's solicitor. 13 The Court pointed out to the claimant and to counsel for the opponents that it appeared in all the circumstances that the only serious issue in these proceedings was the question of costs. If necessary, the Court could hear and determine the appellate proceedings in order to resolve that question of costs but that did not seem a very sensible way to proceed. There was a short adjournment and counsel for the opponent indicated that his client would not seek an order for costs of the summons for leave to appeal. That was the order initially indicated as acceptable by the claimant when he first addressed the Court this morning. 14 The matter has become somewhat complicated for two reasons. The first reason is that the claimant contends that in some way the order made by Bowden DCJ on 18 August contributed to the later events that were the cause of the adverse costs orders and the stay based upon them made by Rolfe DCJ on 21 November 2003. At the same time, the claimant has indicated that he proposes if necessary to seek to have the stay lifted so that the trial of the District Court proceedings can continue as soon as possible. He is hopeful that the costs assessment will be resolved in his favour, because he contends that the total costs should not exceed $7000 in any event. Alternatively, he has signalled his intention to seek to have the stay order dissolved by Rolfe DCJ on various grounds, including it appears some evidence as to the claimant's mental difficulties. 15 I indicated to the claimant in argument that the costs order made by Rolfe DCJ is not a matter that is before this Court in these proceedings. Nothing the claimant has said to me really has answered that view, which remains my view. I recognise that the claimant wants to argue that there is a consequential flow-on effect in that Bowden DCJ's orders contributed to the later defaults. That will be a matter it seems to me for Rolfe DCJ to consider when and if the application is made to dissolve the stay. In any event, it does not in my view tilt the scales in favour of granting leave to appeal in relation to the orders of Bowden DCJ. I will indicate shortly why that is so. 16 The second costs complication to which I adverted earlier is that the claimant has interpreted the earlier remarks from the Court as indicating that it is possible that a costs order should be made in his favour in relation to the proceedings in this Court challenging the orders of Bowden DCJ. 17 I think it is appropriate that I should indicate why in my view the Court should not grant leave to appeal in this matter. It is because the events subsequent to 18 August have essentially removed the cause for concern and the need for inquiry into the correctness of the orders made on 18 August 2003. Rolfe DCJ has allowed the claimant to file the evidence and effectively put his house in order so far as evidence is concerned. Rolfe DCJ is also seised of the costs consequences of the earlier proceedings in the District Court, including the possible cost consequences of the orders made by Bowden DCJ on 18 August 2003. 18 There is no appeal as of right from the orders of Bowden DCJ because they were interlocutory. They deal with a matter of practice and procedure. In such matters, the Court looks for material indicating error in principle and substantive and lasting injustice. I want to make it plain that in refusing leave and accepting the application by the claimant in effect to discontinue the proceedings for leave I would do so on the basis that we have not, in the circumstances, found it necessary to embark on the hearing as to the correctness of the procedural directions given by Bowden DCJ. It is simply because events have moved on since then. In other words, this should not be interpreted as an indication that Bowden DCJ was correct or incorrect in the way he proceeded, it is simply that the Court would not grant leave to ventilate that issue in all of the circumstances. 19 Following the short adjournment, counsel for the opponent indicated that his client did not seek an order for costs in this Court. He indicated some of the reasons upon which that was based, including concern as to the capacity to enforce such an order and a desire not to prolong the proceedings in this Court in circumstances where they had become largely if not completely academic. 20 The claimant, Mr Totev, indicated that he understood why the opponent was taking that position but that he did not now consent to the matter being disposed of on that basis. It is for that reason that I thought it appropriate to deal with the matter by giving reasons and indicating why the Court itself would dispose of the matter on that basis. 21 To recapitulate, the claimant has indicated that there is no utility in pressing on with this appeal except in relation to costs considerations. The Court has had regard to those costs considerations to the extent to which they have been debated. I have had regard to the material before us as to the events that have occurred since the hearing before Bowden DCJ and on the basis of that material consider that the appropriate order in all of the circumstances is to dismiss the summons for leave and to make no order as to costs. 22 GILES JA: I agree with those orders and with the reasons given by the President. 23 STEIN AJA: I also agree. 24 MASON P: Mr Totev, was there anything that you wanted to correct that you said you--