- Unreported Judgment
COURT OF APPEAL
Appeal No 8429 of 2003
PHILLIP JAMES DUBOIS Respondent/Plaintiff
CHEE-TEONG ONGAppellant/First Defendant
BEE LEE CHEW (Not party to appeal/
THE PRESIDENT: On 27 August 2003 the plaintiff at first instance, Dr Dubois, sought summary judgment against Dr Ong and Dr Chew who had given guarantees on behalf of a company which leased property from Dr Dubois. The learned primary Judge found that there was a triable issue as to a defence raised by Dr Chew but that he was not satisfied that Dr Ong had an arguable defence to the claim against him. He made orders consistent with those findings. On 23 September 2003, the last day of the appeal period, Dr Ong filed a notice of appeal contending that the learned primary Judge erred in failing to find that there was an arguable defence to the applicant's claim, no need for a trial of the proceedings and not giving him unconditional leave to defend. Dr Chew was not a party to that appeal and no appeal was made from those orders concerning Dr Chew.
On 1 October 2003, Dr Dubois filed a notice of cross-appeal describing Dr Chew, who was not a party to the appeal, as "the Second Defendant (Party Affected)" and contending that the learned primary Judge erred in finding that there was a triable issue as to Dr Chew's liability under the guarantee.
By the time of filing the purported cross-appeal the period had expired for Dr Dubois to appeal from the order made as to his application for summary judgment against Dr Chew and he needed an extension of time to pursue that appeal. UCPR r 748 requires that an appeal be filed within 20 days after the date of a decision appealed from, whereas a notice of cross-appeal may be made within 14 days after the day of service of the notice of appeal on the respondent. No doubt this is why Dr Dubois decided to bring a cross-appeal rather than an appeal, which would have required an extension of time by that stage.
On 31 October 2003, the applicant's solicitors sent a facsimile letter to Dr Dubois' solicitors pointing out that Dr Chew was not a party to the appeal filed and no cross-appeal in respect of that appeal could be brought against Dr Chew under the UCPR. By facsimile letter of 4 November 2003, Dr Dubois' solicitors indicated their disagreement with that contention, stating that Dr Dubois was entitled to cross-appeal. The applicant, Dr Ong, then brought this application to strike out the cross-appeal as incompetent.
The notice of appeal contended only that the judgment against Dr Ong for $17,596.16, together with interest of $2,256.17 and costs, be set aside but did not contend that the orders made in respect of Dr Chew be set aside. It specifically noted that she was not a party to the appeal.
Mr Bland, who appears for Dr Dubois, contends that the UCPR support the filing of a cross-appeal on the facts here, referring to r 747(1)(a), r 755(1)(a) and that r 754 allows service on any other party who may be affected and its plain words support the filing of the cross-appeal.
The issue really is whether the decision appealed from includes the orders made against Dr Chew. In the purported cross-appeal Dr Dubois does not contend that the decision appealed from, which concerns only Dr Ong, should be varied but rather that a different decision should have been made in respect of his case against Dr Chew.
In my view, although there are arguments both ways, this is not a case for a cross-appeal. It was necessary for Dr Dubois, if he wished to contest the decision in respect of Dr Chew's liability to him, to appeal from that decision rather than to cross-appeal from the appeal made by Dr Ong. That conclusion certainly does not render nugatory the provisions under the UCPR as far as they relate to cross-appeals. Many examples can be contemplated where there could be a cross-appeal and "service on any other party who may be affected" under r 754.
In my view, the cross-appeal should be struck out.
Mr Bland has requested that if that course is taken that I orally deal with this matter as an extension of time within which to appeal, although he has not filed such an application and I note the necessary two days' notice under the rules has not been given. I am prepared to waive the time necessary for such an application and to accept that application orally today in the circumstances. It could not fairly be suggested that Dr Ong and Dr Chew are surprised by such an application.
The reason for not filing the appeal within time is because it was not known until the appeal period had all but expired, that Dr Ong was appealing from the decision that concerned him.
Mr Savage, who appears for the applicant, Dr Ong, contends that an extension of time should not be given because there is little merit in the appeal. There may be something in that contention but in the end Dr Dubois' appeal and Dr Ong's appeal are closely related. In the circumstances I think it is appropriate to extend the time within which to bring Dr Dubois' appeal.
The orders are: the notice of cross-appeal dated 1 October 2003 is struck out; Dr Dubois is given an extension of time within which to appeal from the decisions in respect of Dr Chew until 4 p.m. Tuesday next.
The question of costs is not an entirely straightforward one but in the end it seems appropriate that Dr Dubois should pay the costs of and incidental to this application. He did not decide to pursue his rights of appeal in respect of the decision concerning Dr Chew in a timely fashion and, in effect, is asking a boon from the Court for an extension of time. It seems to me he should pay the costs of and incidental to this application but such costs order should not be enforced until the conclusion of the appeal. Those are the orders.
- Published Case Name:
Ong v Dubois
- Shortened Case Name:
Ong v Dubois
 QCA 545
05 Dec 2003
No Litigation History