New South Wales
Court of Appeal
CITATION: ADAMSON v EDE [2009] NSWCA 403 HEARING DATE(S): 26 August 2009
JUDGMENT DATE:
10 December 2009JUDGMENT OF: Allsop P at 1; Basten JA at 1; Sackville AJA at 1 DECISION: (1) Extend the time for filing the notice of appeal to 1 April 2009.
(2) Dismiss the appeal.
(3) Order the appellant to pay the respondent’s costs of the proceedings in this Court.CATCHWORDS: ADMINISTRATIVE LAW – procedural fairness – hearing rule – cross-summons filed prior to hearing – whether reasonable opportunity to contest cross-summons – inconsistent pleadings – concession of existence of lease by claim that it should be set aside – denial of existence of lease – whether prejudice suffered by the appellant - COSTS – general rule – cross-summons partly successful – costs awarded against cross-defendant – serious allegation of improper conduct – relief in cross-summons awarded without examination of allegation – no finding of misconduct in making allegation – whether grounds for interfering with exercise of discretion - LANDLORD AND TENANT – leases and tenancy agreements – special conditions of lease – conditions highly favourable to tenant – tenant to become beneficial owner of two-thirds interest in leased property – tenant entitled to rental rebates for various services – whether conditions unjust in the circumstances – Contracts Review Act 1980 (NSW), s 7(1) - PROCEDURE – application to re-open hearing – application for equitable set-off and defence – not field or served prior to day of judgment – whether application ought to have been entertained - WORDS AND PHRASES – "residential tenancy agreement" – "special conditions" LEGISLATION CITED: Contracts Review Act 1980 (NSW), s 7
Fair Trading Act 1987 (NSW), ss 42, 72
Residential Tenancies Act 1987 (NSW), s 9
Residential Tenancies (Residential Premises) Regulation 1995 (NSW)CATEGORY: Principal judgment CASES CITED: ACN 097 590 817 Pty Ltd as Trustee of the ACN Trust v Ede; Adamson v Ede [2007] NSWSC 1384
Adamson v Ede [2008] NSWSC 1143
Adamson v Ede [2009] NSWCA 379
Brailsford v Tobie [1889] 10 ALT 194
CGU Insurance Ltd v Lawless [2008] VSCA 38
Hermann v Charny [1976] 1 NSWLR 261
Issitch v Worrell [2000] FCA 477; 172 ALR 586
Kowalczuk v Accom Finance Pty Ltd [2008] NSWCA 343
Parker v McKenna (1874) 10 Ch App 96
Perpetual Trustee Company Ltd v Khoshaba [2006] NSWCA 41
Surfing Hardware International Holdings Pty Ltd v McCausland [2008] FCA 1522PARTIES: Christopher Michael Adamson - Appellant
Kenneth John Ede - RespondentFILE NUMBER(S): CA 40107/09 COUNSEL: Appellant Self-represented
J Horowitz - RespondentSOLICITORS: Appellant Self-represented
Horowitz and Blinsky - RespondentLOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): SC 11862/08 LOWER COURT JUDICIAL OFFICER: Harrison J LOWER COURT DATE OF DECISION: 28 November 2008
CA 40107/09
SC 11862/0810 December 2009ALLSOP P
BASTEN JA
SACKVILLE AJA
Christopher Michael ADAMSON v Kenneth John EDE
Headnote
The respondent is the owner of a property at Nabiac ("the premises"). On 31 July 2001 he executed a…
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Details
- AGLC
- Adamson v Ede [2009] NSWCA 403
- Case
- [2009] NSWCA 403
- Decision Date
CaseChat Overview and Summary
The appeal concerned a dispute between Adamson (the appellant) and Ede (the respondent) regarding a lease agreement. The primary issue revolved around whether the appellant had been afforded procedural fairness during the initial hearing, particularly in relation to a cross-summons filed by the respondent. The case was heard in the Court of Appeal of New South Wales.
The court was required to determine several legal issues. These included whether the appellant had a reasonable opportunity to contest the cross-summons, given its late filing. The court also considered whether the appellant suffered prejudice due to inconsistent pleadings by the respondent, who both sought to set aside a lease and denied its existence. Furthermore, the court examined whether certain special conditions within the lease, which were highly favourable to the tenant, were unjust under the Contracts Review Act 1980 (NSW). Finally, the court considered whether an application to re-open the hearing, filed on the day of judgment, ought to have been entertained.
The Court of Appeal found that the appellant had been afforded procedural fairness. While acknowledging the late filing of the cross-summons, the court determined that the appellant had sufficient opportunity to respond and that no substantial prejudice arose from the respondent's inconsistent pleadings. Regarding the special conditions of the lease, the court concluded that they were not unjust within the meaning of the Contracts Review Act. The court also held that the application to re-open the hearing was correctly refused as it was filed too late and lacked sufficient grounds.
Consequently, the Court of Appeal ordered an extension of time for the filing of the notice of appeal, but ultimately dismissed the appeal. The appellant was ordered to pay the respondent's costs of the proceedings in the Court of Appeal.
The court was required to determine several legal issues. These included whether the appellant had a reasonable opportunity to contest the cross-summons, given its late filing. The court also considered whether the appellant suffered prejudice due to inconsistent pleadings by the respondent, who both sought to set aside a lease and denied its existence. Furthermore, the court examined whether certain special conditions within the lease, which were highly favourable to the tenant, were unjust under the Contracts Review Act 1980 (NSW). Finally, the court considered whether an application to re-open the hearing, filed on the day of judgment, ought to have been entertained.
The Court of Appeal found that the appellant had been afforded procedural fairness. While acknowledging the late filing of the cross-summons, the court determined that the appellant had sufficient opportunity to respond and that no substantial prejudice arose from the respondent's inconsistent pleadings. Regarding the special conditions of the lease, the court concluded that they were not unjust within the meaning of the Contracts Review Act. The court also held that the application to re-open the hearing was correctly refused as it was filed too late and lacked sufficient grounds.
Consequently, the Court of Appeal ordered an extension of time for the filing of the notice of appeal, but ultimately dismissed the appeal. The appellant was ordered to pay the respondent's costs of the proceedings in the Court of Appeal.
Orders
Orders of the court
(1) Extend the time for filing the notice of appeal to 1 April 2009.
(2) Dismiss the appeal.
(3) Order the appellant to pay the respondent’s costs of the proceedings in this Court.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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