Paschalidis v Shamsizadeh [2017] NSWSC 1186

Supreme Court New South Wales

Medium Neutral Citation: Paschalidis v Shamsizadeh [2017] NSWSC 1186 Hearing dates: 9 June 2017 Date of orders: 19 January 2018 Decision date: 19 January 2018 Jurisdiction: Common Law Before: Lonergan J Decision: (1) Leave to appeal out of time is refused. (2) Summons dismissed. (3) The appellant is to pay the respondent's costs. Catchwords: CIVIL PROCEDURE – appeal from Local Court – application for leave to appeal out of time – delay – no fairly arguable case Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) rr 50.3, 50.12 Cases Cited: Jingalong Pty Ltd v Todd [2014] NSWCA 330 John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344; [2004] NSWCA 324 R v Birks (1990) 19 NSWLR 677 Category: Principal judgment Parties: Thomas Paschalidis (Appellant) Ibrahim Shamsizadeh (Respondent) Representation: Counsel: Appellant (self-represented) S Cairns (Respondent)

Solicitors: Appellant (self-represented) Burston Cole & Associates (Respondent) File Number(s): 2016/212171 Publication restriction: Nil Decision under appeal Court or tribunal: Local Court Jurisdiction: Civil Date of Decision: 9 May 2016 Before: Keady LCM File Number(s): 2015/114351; 2015/119099

Judgment 1. Mr Paschalidis, the appellant, has filed a summons seeking leave to appeal from the decision of Magistrate Keady of 9 May 2016. The summons was filed out of time on 13 July 2016. For the reasons that follow I refuse to grant leave to proceed with the appeal out of time because to grant such leave would be futile given the conclusions I have reached about the merits of the appeal. 2. The proceedings in the Local Court involved two parallel claims by Mr Paschalidis and Mr Shamsizadeh arising out of an oral agreement for the sale of a business at premises in Fairfield. The business had been operated by Mr Paschalidis for a period and was in the nature of a juice shop called "The Juice Stop". 3. In February 2015, it was agreed that Mr Shamsizadeh was to purchase the business from Mr Paschalidis for a sum of $25,000. Mr Paschalidis asserts that the agreement was for him to vacate the business premises, thus allowing Mr Shamsizadeh to take up his own independent lease with the landlord, as well as to transfer certain equipment to Mr Shamsizadeh. Mr Paschalidis denied he made any representation at all about what goods could be sold at the business premises. 4. On the other hand, Mr Shamsizadeh asserted that Mr Paschalidis agreed to assign or transfer his lease to Mr Shamsizadeh and that he could "sell everything" from the business premises including ice cream, hot food, coffee, tea, popcorn, confectionary and snacks. 5. Mr Shamsizadeh began trading from the premises but was advised by a representative of the landlord that he was not permitted to sell chips, chewing gum or coffee from the premises. Mr Shamsizadeh did not want the business on that basis and so returned the keys, restored the business premises, and left. 6. By this stage, Mr Shamsizadeh had already paid to Mr Paschalidis $15,000, leaving $10,000 outstanding to Mr Paschalidis. 7. Mr Paschalidis commenced proceedings in the Local Court for the remaining $10,000 due. Mr Shamsizadeh commenced his own Local Court proceedings at the same time, seeking return of the $15,000 he had paid based on an asserted misrepresentation by Mr Paschalidis. 8. The learned Magistrate, after repeatedly and very appropriately pressing the parties to try to settle the matter given the small sum involved, determined the proceedings in favour of Mr Shamsizadeh on all issues including costs. 9. Mr Paschalidis does not complain about his Honour's findings, but about certain events that occurred during the hearing which he says meant there was no procedural fairness afforded to him and that a miscarriage of justice resulted. I observe that whilst complaints regarding inadequate or lack of procedural fairness can be errors of law, none of the grounds of appeal are made out and thus none raise an arguable basis upon which it could be said that his Honour Magistrate Keady erred in law.