Skalkos v Smiles & Ors

MASTER MALPASS : These proceedings have been on foot since 1995. There are a number of parties. There are various Cross-Claims. The present dispute concerns the sixth defendant (Kotsakis) and the first defendant (Smiles).

Kotsakis wants to bring a Cross-Claim against Smiles. It purports to be a claim for money payable by reason of breach of agreement.

Kotsakis filed a Notice of Motion on 31 July 2002. It was heard by Senior Deputy Registrar Whitehead on 24 September 2002. The Reasons for Decision were handed down on 30 September 2002. The Notice of Motion was dismissed.

Kotsakis now seeks a review of that decision. The review was carried out on 26 February 2003.

The court has a discretionary power to grant the relief that is sought by Kotsakis. The power is exercised having regard to the relevant circumstances of the particular case before the court and so that justice is best served. The onus rests with the party seeking relief.

The applicant is now well out of time. He does not put forward any affidavit material to explain or justify the delay. It was frankly conceded that nothing could be put forward to satisfactorily explain the delay.

In his reasons, the Registrar appears to have accepted a submission to the effect that delay alone is not enough to deny leave in the present case.

In my view, that is not the correct approach. Each case will turn on its own particular circumstances. In this case the delay is of a high order and it cannot be the subject of a satisfactory explanation. Further, that delay can give rise to presumed prejudice. I consider these matters are of considerable weight and in the appropriate case may lead to failure of an application.

The Registrar has accepted a submission that it would be futile to grant the present application. The futility argument arises from Smiles making a composition under Pt X of the Bankruptcy Act 1966 on 1 May 1996 and the operation of provisions of that Act (including s 82).

The reasons also record that counsel for Kotsakis informed the court of an intention to amend the proposed Cross-Claim so as to plead an agreement to indemnify. The Registrar correctly took the course of dealing with the application that was before him and not proceeding on the basis of some intention to amend in the future.

It seems to me, that a review of the decision reveals no basis for the disturbing of it. Accordingly, I confirm the decision and dismiss the present application. Kotsakis is to pay the costs of the Notice of Motion filed on 15 October 2002. The Exhibit may be returned.