Augusto v Augusto Homes Pty Ltd (In Liquidation) and Anor
 NTCA 8
PARTIES: AUGUSTO, Fatima Marissa
AUGUSTO HOMES PTY LTD (IN LIQIDATION)
(ACN 110 290 189)
ANGUS, Trevor Alan
TITLE OF COURT: COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CIVIL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO: AP 6 of 2012 (21043110)
DELIVERED: 9 November 2012
HEARING DATES: 25 and 26 October 2012
JUDGMENT OF: SOUTHWOOD J
APPEALED FROM: MASTER
PRACTICE AND PROCEDURE – Dismissal of appeal as incompetent – appeal against summary judgment for enforcement of settlement – appeal filed out of time – appeal doomed to fail
Allianz Australia Insurance Ltd v Territory Insurance Office  NTCA 8
Coutts & Co v Duntroon Investment Corp Ltd  1 All ER 51
Darling Down Investments Pty Ltd v Ellwood (1988) 80 ALR 203
Deckana Pty Ltd v Northern Territory of Australia and Others (2006) 17 NTLR 22
Deckana Pty Ltd v Commonwealth Bank of Australia (Court of Appeal, 15 January 2004, unreported) per Mildren J
Eshelby v Federated European Bank Ltd  1 KB 254
Hardel Pty Ltd v Burrell & Family Pty Ltd (2009) 103 SASR 408
Jess v Scott (1986) 12 FCR 187
Nolks v Dickman trading as Ray Lawrence Constructions  NTCA 7
Roberts v Gippsland Agricultural and Earth Moving Contracting Co Pty Ltd  VLR 555
Szabo v Dasford Holdings Pty Ltd & Ors (2003) 196 ALR 625
Appellant: D Francis
Respondent: Litigant in Person
Appellant: David Francis and Associates
Respondent: Litigant in Person
Judgment category classification: B
Judgment ID Number: Sou1208
Number of pages: 18
IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
Augusto v Augusto Homes Pty Ltd (In Liquidation) and Anor
 NTCA 8
FATIMA MARISSA AUGUSTO
AUGUSTO HOMES PTY LTD (IN LIQUIDATION)
(ACN 110 290 189)
TREVOR ALAN ANGUS
CORAM: SOUTHWOOD J
REASONS FOR JUDGMENT
(Delivered 9 November 2012)
 This is an application for an order dismissing the appellant’s appeal against the summary judgment of the Master given on 12 July 2012 as incompetent. The application is made under r 84.16 of the Supreme Court Rules. The application was heard by me while sitting as a single member of the Court of Appeal in accordance with s 52(2)(b) and (3) of the Supreme Court Act.
The history of the proceedings
 The history of the proceedings is as follows.
 On 23 December 2010 the first respondent filed a writ endorsed with a statement of claim in Supreme Court proceeding No 142 of 2010. The statement of claim pleaded the following. (1) The first respondent and the appellant had entered into an oral building contract under which the servants and agents of the first respondent were to build a home on the appellant’s land for the sum of $392,000. (2) The oral agreement was incorporated in a written contract, but due to a mutual mistake the consideration for the construction of the house was incorrectly stated in the written contract as $290,000. (3) The first respondent duly constructed the house but the appellant only paid the first respondent the sum of $290,000, not the agreed consideration of $392,000. (4) The first respondent claimed rectification of the written contract, damages for breach of contract and, in the alternative, an account of the monies found to be due to the first respondent.
 On 21 April 2011 the appellant filed a defence. The defence pleaded the following. (1) A denial of the existence of any oral contract. (2) An allegation that the written contract constituted the entire agreement between the parties and an allegation that the contract sum for the building works was $290,000. (3) An allegation that a further amount of $102,000 was for the purchase of the land not the construction of a house. (4) A denial of any mutual mistake. (5) Payment of the contract sum and a denial that any monies were outstanding.
 On 8 September 2011 the second respondent, who is the liquidator of the first respondent, filed an originating motion in Supreme Court proceeding No 111 of 2011 under s 588FF of the Corporations Act (Cth) seeking orders that the appellant pay the first respondent certain monies and/or benefits that were specified in the originating motion as being the fruits of voidable transactions under s 588FE of the Corporations Act (Cth). On 29 October 2010 the first respondent commenced a proceeding against the appellant in the Local Court claiming a debt of $18, 662.13. The matter was transferred to the Supreme Court on 30 September 2011 and was given proceeding No 120 of 2011.
 On 21 October 2011 proceeding No 142 of 2010 was consolidated with proceedings No 111 of 2011 and No 120 of 2011. On 21 October 2011 the first and second respondents filed an amended statement of claim which pleaded the various claims made by the first and second respondents against the appellant in the consolidated proceeding. On 2 December 2011 the appellant filed an amended defence and counterclaim in the consolidated proceeding.
 On 2 March 2012 Minter Ellison Lawyers, who were the town agents for Pace Lawyers, filed a summons seeking leave to file a notice of ceasing to act as town agents for Pace Lawyers. The appellant retained Pace Lawyers as her solicitors in Adelaide which is where she resides. On 8 March 2012 the Master gave leave to Minter Ellison to cease to act for the appellant. His Honour also ordered that the address for service for the appellant was to be the Registry of the Supreme Court on the basis that the Registry staff would post all documents served on the Registry to the appellant care of Pace Lawyers in Adelaide and on the further basis that the appellant bore the risk of postage.
 During 2012 the parties entered into settlement negotiations which are recorded in emails passing between Mr David Francis, the solicitor for the first and second respondents, and members of the firm of Pace Lawyers. The settlement negotiations started on or about 14 February 2012 when Mr Francis made an offer of settlement by email to Pace Lawyers. That offer was met by a counter offer from Pace Lawyers which was made by email on 15 February 2012. On 2 March 2012 Mr Francis rejected the counter offer made by Pace Lawyers and made a further offer of settlement by email. On 7 March 2012 Pace Lawyers sent an email to Mr Francis stating that, “We confirm that our client accepts the offer [of settlement] made by your client in your email of 2 March 2012 (below) noting that your client will liaise with our client with respect to offers made [for the purchase of the property] if they do not reach the recommended market value of $670,000”. The statement that Mr Francis’s clients would liaise with the appellant potentially amounted to a variation of the terms of settlement and further emails were exchanged between the solicitors on 7 March 2012. The emails resulted in the confirmation of the terms of settlement contained in Mr Francis’s email of 2 March 2012.
 In accordance with the terms of settlement, on 14 March 2012 Mr Francis sent an enduring power of attorney in favour of the second respondent to Pace Lawyers to be executed by the appellant. The purpose of the power of attorney was to enable the second respondent to conduct the sale of the appellant’s property at Forrest Parade, Bakewell. On 19 March 2012 Pace Lawyers sent an email to Mr Francis enquiring if the terms of settlement could be formalised by deed. Pace Lawyers acknowledged that there had been no previous reference to a deed and stated the appellant was apprehensive about executing a power of attorney until the execution of a deed had been clarified. On 22 March 2012 Mr Francis sent an email to Pace Lawyers stating that the terms of settlement had been adequately recorded in the emails which had been exchanged between the solicitors. Nonetheless, he stated that the respondents were prepared to execute a deed of settlement provided the appellant paid for the preparation of the deed or, alternatively, Pace Lawyers prepared the deed. On 29 March 2012 Mr Francis received an email from Pace Lawyers attaching a draft deed of settlement and over the next several weeks emails were exchanged about the terms of the proposed deed of settlement. However, agreement about the terms of the deed of settlement was not achieved.
 It appears that during the course of negotiations about the terms of the deed of settlement, Mr Francis amended the draft deed of settlement to include a term that the appellant would apply the whole of the net rentals received from the leasing of the property towards the reduction of the outstanding mortgage debt due to Perpetual Ltd. The suggested term was in accordance with the terms of settlement contained in Mr Francis’s email dated 2 March 2012. However, it appears that the appellant was not happy with the inclusion of that term in the deed of settlement. As a result, on 4 May 2012 Mr Francis sent an email to Pace Lawyers requesting confirmation that the appellant would execute the deed of settlement and the enduring power of attorney and advising that if confirmation was not received the matter would be referred back to the Court for further directions.
 On 9 May 2012 Pace Lawyers sent an email to Mr Francis advising that the appellant, herself, had arranged for a contract of sale of the property, and they had requested the appellant to contact Mr Francis and negotiate with him directly from that point onwards. On 10 May 2012 Mr Francis sent a lengthy email to Pace Lawyers in response to their email of 9 May 2012. The email advised that if matters were not adequately clarified by the provision of certain particulars the respondents would apply to have the terms of settlement recorded as an order of the Court and for the proceeds of sale of the property to be paid into Court. On 18 May 2012 Mr Francis sent a further email to Pace Lawyers seeking the particulars he had requested.
 On 23 May 2012 Mr Francis filed a summons seeking orders that the terms of the settlement be recorded as an order of the Court. On 26 May 2012 Mr Francis sent a sealed copy of the summons to Pace Lawyers. On 1 June 2012 the appellant sent an email to Mr Francis stating, inter alia, that all of the terms of the agreement were essentially agreed by her and advising that the proceeds of the sale of the property would be handled in accordance with the terms of the settlement. On 6 June 2012 Pace Lawyers sent an email to Mr Francis stating that the appellant agreed in principle to the terms of the deed of settlement and had sold the property in accordance with its terms. The email stated that the only matter of difference was there was no longer any need for the power of attorney, and they requested that the summons seeking an order that the terms of settlement be recorded as an order of the Court be adjourned.
 On 6 June 2012 the first and second respondents filed an amended summons seeking orders that the terms of the settlement be recorded as orders of the Court. The summons was further amended on 12 June 2012.
 On 20 June 2012 Pace Lawyers terminated the appellant’s retainer of their services by letter of the same day. However, they did not obtain leave to file a notice of ceasing to act for the appellant in the consolidated proceeding. There was no need to do so as Pace Lawyers were never on the record as the solicitors for the appellant.
 On 22 June 2012 Mr Francis filed a summons on behalf of the the first and second respondents seeking the following orders.
1. The Plaintiffs have leave to amend their statement of claim in accordance with the terms of the draft statement of claim (“the Second Further Amended Statement of Claim”) annexed to the affidavit of David Edward Francis (sic) sworn on 20 June 2012 and filed in support of the summons.
2. Summary judgment is awarded in favour of the Plaintiffs against the defendant for the specific performance by the defendant of the terms of settlement specified in paragraph 50 of the Second Further Amended Statement of Claim.
3. In the alternative to order No. 2, an order that summary judgment be awarded in favour of the Plaintiffs against the Defendant as to liability based on breach by the Defendant of the terms of settlement with damages to be assessed.
 The draft statement of claim, which is referred to in the summons filed on 22 June 2012, pleaded that the parties had settled all of their respective claims and sought an order for specific performance of the settlement agreement and certain ancillary orders.
 The summons was filed in accordance with r 36.01(3) and r 14.03(2) of the Supreme Court Rules and s 19 of the Supreme Court Act. Rule 36.01(3) and r 14.03(2) of the Supreme Court Rules abrogate the old rule that a plaintiff could not, by amendment, introduce a cause of action that arose after the date of the writ, and enable a compromise of the proceeding to be pleaded in a pending proceeding in the Court. Section 19 of the Supreme Court Act enables a party to enforce a compromise by summons seeking summary judgment in a pending proceeding rather than having to file a fresh proceeding to enforce the compromise. The summons was supported by an affidavit of Mr Francis sworn on 23 May 2012, an affidavit of Mr Francis sworn on 20 June 2012, an affidavit of Trevor Angus sworn on 20 June 2012, and an affidavit of Mr Francis sworn on 5 July 2012.
 On 22 June 2012 by letter addressed to the appellant’s address for service, of care of the Registry of the Supreme Court, Mr Francis served the appellant with a copy of the summons filed on 22 June 2012 together with copies of the supporting affidavits.
 On 2 July 2012 Pace Lawyers filed a summons seeking an order granting them leave to file a notice of ceasing to act for the appellant. On 12 July 2012 the Master dismissed the summons. Pace Lawyers were not granted leave to file a notice of ceasing to act for the appellant. However, they were never the solicitors on the record for the appellant so their summons was arguably otiose.
 On 4 July 2012 Mr Francis received what can only be described as a rambling email from the appellant. In response, Mr Francis sent an email to the appellant which stated as follows.
I refer to your letter of today’s date.
The position of the plaintiffs is clearly spelt out in the affidavits filed in support of the application for leave to amend the statement of claim to incorporate the agreed terms of settlement and for summary judgment. As you are aware, the summons by which the application is to be brought is listed for hearing before the Master of the Supreme Court at 10 am tomorrow 5 July 2012. I am instructed by my client that he wishes to proceed with such application at such time.
I note that the proposed Second Further Amended Statement of Claim being annexure “A” to the affidavit of Mr Angus sworn 20 June 2012 contains an error in the first line of paragraph 50 in that the reference to “7 March 2010” should clearly read “7 March 2012”. Such error is obvious having regard to the particulars specified at the end of such paragraph in which the dates of the emails relied upon by the plaintiffs are all specified. I have therefore further amended such document and attach a copy of the same in this email. The application will therefore be for leave to file the corrected version of such further amended statement of claim and for summary judgment on the basis of such document.
 At 4.58 pm on 4 July 2012 the appellant sent an email to Mr Francis which stated:
What application do you refer please? Save for this correspondence, I have not received any correspondence from you whatsoever. You have had my email address since May this year. I await your reply.
 On 5 July 2012 the Master ordered that leave is given to the respondents to file and serve the second further amended statement of claim which pleaded the settlement agreement and sought an order for specific performance. His Honour further ordered that the respondents were to serve the second further amended statement of claim on the appellant by close of business on 9 July 2012.
 There was no appearance by the appellant or her solicitors before the Master on 5 July 2012. Before proceeding to hear Mr Francis the Master confirmed that the appellant had been served with the summons filed on 22 June 2012 and the supporting affidavits. It also appears that the Master had before him some of the emails that the appellant had created on 4 July 2012. However, because the emails were not given exhibit numbers it is not possible to know precisely what emails were before the Court other than those which are annexed to Mr Francis’s affidavits.
 On 12 July 2012 the Master made the following orders.
1. The summons filed by Pace Lawyers on 2 July 2012 is dismissed.
2. Summary judgment for the [respondents].
3. The [appellant] execute and return to the [second respondent] not later than 7 days after the date of these orders, the enduring power of attorney in favour of the [second respondent] forwarded by the respondents to the appellant on 14 March 2012.
4. In the event that the [appellant] fails to execute and return to the [second respondent] the said enduring power of attorney referred to in order 3 within 14 days after the date of these orders, the Registrar of this court is by virtue of these orders, authorised to sign such enduring power of attorney on behalf of the [appellant] and to return the same on behalf of the [appellant] to the [second respondent].
5. The relief sought by the [respondents] in paragraph 58.3 of the Second Future Amended Statement of Claim is adjourned sine die with liberty to apply.
6. The [appellant] is to pay the [respondents] costs of the proceeding to be agreed or taxed in default of agreement and assessed on the standard basis.
 On 12 July 2012 there was again no appearance by the appellant before the Master. The Master had the appellant called and then he proceeded to hear the application for summary judgment. The Master did not give written reasons for granting summary judgment and the ancillary orders he made on 12 July 2012.
 On 25 July 2012 Mr Francis served the appellant with a sealed copy of the authenticated orders of the Master made on 12 July 2012 by delivering them to the appellant at her address for service being care of the Registry of the Supreme Court.
 On 16 August 2012 the appellant filed a document entitled “application for leave to appeal” in the Supreme Court. The application was served on the respondents by Nighthawk Transport on or about 17 August 2012. It is of potential significance that the appellant elected to follow this course rather than filing a summons seeking an order of the Court under r 22.15 of the Supreme Court Rules. Rule 22.15 states that the Court may vary or set aside a judgment given against a party who does not attend on the application for summary judgment.
 The document filed by the appellant appears to seek leave to appeal against the summary judgment of the Master made on 12 July 2012. The appellant also complains about the order the Master made on 5 July 2012. However, subject to a notice of appeal being filed on time, it is not necessary to obtain leave to appeal against a judgment for the plaintiff following an application for summary judgment. An order granting an application for summary judgment is a final order because it finally disposes of the action by a judgment which creates a new charter governing the substantive rights of the parties.
 If the appellant wished to appeal the order of the Master of 12 July 2012, the appellant should have filed and served a notice of appeal in accordance with Form 85B of the Supreme Court Rules. The notice of appeal must be filed within 28 days after the material date which in this case was 12 July 2012. The material date is the date on which judgment takes effect in accordance with r 59.02 of the Supreme Court Rules. Rule 59.02 of the Supreme Court Rules states that a judgment given or order made by the Court shall bear the date of and take effect on and from the day that it is given or made, unless the Court orders otherwise. A judgment given means a judgment given by the Court at the trial of a proceeding or on the hearing of an application in a proceeding. The appellant should have filed the notice of appeal on or before 9 August 2012.
 If a notice of appeal is not filed within the time stipulated by the Supreme Court Rules, it is necessary for a party to make an application for an extension of time in which to appeal. A judge, for special reasons, may at any time give leave to file and serve a notice of appeal. An application for an extension of time must be on Form 85C of the Supreme Court Rules. It must also be supported by an affidavit which states the grounds of the application. This usually involves the tender of information which provides an explanation which reasonably excuses the delay and establishes the existence of a ground of appeal that is not bound to fail. Special reasons are reasons which justify a departure from the general rule in the particular case.
 The document filed by the appellant, which is described as an application for leave to appeal, appears to raise the following grounds of appeal.
1. The appellant was denied procedural fairness because she was not served with the application for summary judgment: pars 35, 36, 40 of the application for leave to appeal.
2. The appellant was denied procedural fairness because on 4 July 2012 she sent an email to the Master’s assistant requesting an adjournment until she had sufficient time in which to reply to the application for summary judgment and prepare: par 55 and annexure ‘FMA5’ of the application for leave to appeal.
 The appellant’s explanation for her failure to file a notice of appeal within time may be summarised as follows.
1. For reasons of to do with her safety and the safety of her children the appellant has had to leave Darwin: par 67 of the application for leave to appeal.
2. She has been self represented since 20 June 2012 and she is ignorant of the Supreme Court’s rules and procedures: par 48 of the application for leave to appeal.
3. She is impecunious and has been abandoned by her lawyers: par 65 of the application for leave to appeal.
 On 30 August 2012 the appellant filed a summons seeking an order prohibiting the respondents from taking possession of, dealing with or otherwise disposing of the land until the outcome of the appeal. On 4 September 2012 Kelly J dismissed the summons upon the second respondent undertaking to pay the proceeds of the sale of the land into court if and when the property is sold.
 On 28 September 2012 Mr Francis wrote to the appellant seeking further and better particulars of the appellant’s grounds of appeal. By email sent on 10 October 2012 the appellant provided the following further and better particulars:
1. The appellant intends to appeal both the decision of the Master made on 5 July 2012 and the decision of the Master made on 12 July 2012.
2. The appellant intends to appeal against the whole of each decision.
3. The grounds of the appeal are:
(a) The Master failed to take into account the fact that the appellant was unrepresented and she had not been personally served with the applications and supporting affidavits.
(b) The Master was biased against her.
(c) Mr Francis has misled the Master.
 On 9 October 2012 the respondents filed the summons seeking orders that the appeal filed by the appellant be dismissed.
The respondents’ submissions
 Mr Francis made the following submissions in support of the application to strike out the appeal as incompetent. First, the appellant had not filed an application for leave to appeal against the order of the Master made on 5 July 2012 granting the respondents leave to file a further amended statement of claim. Second, any such application would now be made out of time and it would be necessary to seek an extension of time in which to make such an application. Thirdly, the appellant had not complied with the Supreme Court’s rules which govern an appeal against the order for summary judgment made by the Master on 12 July 2012. The appeal was out of time and the appellant had not made an application seeking an extension of time in which to appeal. Further, the appellant had not filed a notice of appeal or a proposed notice of appeal in the correct form. The appellant had not explained her delay in filing the appeal. Any grounds of appeal that may be gleaned from the document which was entitled, application for leave to appeal, were utterly without merit and were doomed to fail.
 In my opinion, there is a lot of force in Mr Francis’s submissions. I accept his submissions.
 The appellant has not filed an application for leave to appeal the order of the Master made on 5 July 2012 and any such application would now be out of time. The summons seeking the order to amend the respondents’ statement of claim was duly served on the appellant and the appellant had actual notice of the application. She failed to appear by telephone or otherwise on 5 July 2012. She has not identified any valid grounds of appeal against the order made by the Master on 5 July 2012. The Master has power to grant the respondents leave to amend their statement of claim in accordance with the second further amended statement of claim. A party may now amend their pleadings to plead a cause of action which arose after the Writ was filed, and a compromise may be enforced in a pending proceeding. It is no longer necessary to bring a separate proceeding to enforce a compromise.
 Further, the appellant’s appeal against the summary judgment given by the Master on 12 July 2012 is out of time. The appellant has not made an application for an extension of time to appeal against that order. The appellant has not filed a notice of appeal in accordance with the rules and the grounds of appeal which can be gleaned from the appellant’s document which is entitled, application for leave to appeal, are utterly without merit. The appellant was served with the summons seeking summary judgment and she did not appear on 12 July 2012 by telephone or otherwise. There is no evidence that Mr Francis has misled the Master in any way. I have reviewed the transcript of the proceedings on 5 and 12 July 2012 and there is no evidence to demonstrate that the Master was biased against the appellant. The appellant is not entitled to any indulgence by the Court simply because she is unrepresented. The evidence contained in the affidavits that were filed by the respondents in support of their application for summary judgment clearly and incontrovertibly establish that the parties had come to an agreed settlement which was not subject to or conditional upon the execution of a deed of settlement.
 In the circumstances, the appellant’s appeal should be dismissed as incompetent. There is no basis upon which the appellant should be granted leave to attempt to regularise her appeal. She conceded during the submissions that she made in the course of the application to dismiss the appeal that, other than there being no deed of settlement, the orders made by the Master on 12 July 2012 reflected the terms of the settlement agreement that had been made between herself and the respondents.
 I order that the appeal is dismissed as incompetent and I will hear the parties further as to costs.
 Deckana Pty Ltd v Northern Territory of Australia and Others (2006) 17 NTLR 22; Deckana Pty Ltd v Commonwealth Bank of Australia (Court of Appeal, 15 January 2004, unreported) per Mildren J; Nolks v Dickman trading as Ray Lawrence Constructions  NTCA 7 per Riley CJ.
 Coutts & Co v Duntroon Investment Corp Ltd  1 All ER 51 at 53; Eshelby v Federated European Bank Ltd  1 KB 254.
 Roberts v Gippsland Agricultural and Earth Moving Contracting Co Pty Ltd  VLR 555; Darling Downs Investments Pty Ltd v Ellwood (1988) 80 ALR 203 per Pincus and Einfeld JJ.
 Hardel Pty Ltd v Burrell & Family Pty Ltd (2009) 103 SASR 408 at  per Kourakis J.
 r 85.09 Supreme Court Rules.
 r 85.12 Supreme Court Rules.
 r 85.01 Supreme Court Rules.
 r 1.09 Supreme Court Rules.
 r 85.12 (2) Supreme Court Rules.
 r 85.13 (4) Supreme Court Rules.
 Jess v Scott (1986) 12 FCR 187 at 197; Szabo v Dasford Holdings Pty Ltd & Ors (2003) 196 ALR 625 at 633 – 634; Allianz Australia Insurance Ltd v Territory Insurance Office  NTCA 8.