Bartley v Myers - [2001] SASC 212

[2001] SASC 212
BARTLEY V MYERS
Civil

LANDER J. There are two applications before me. First an application for a stay of execution of a judgment given in the District Court on 28 September 2000. Secondly an application to extend the time within to set down an appeal. The appeal was filed on 12 October 2000. If an appeal is not set down within six months it lapses: r 95.11.
The applicants were the defendants in the Court below. The first and second respondents were the plaintiffs. The third respondent was a defendant.
Judgment was given in favour of the first respondent against the applicants in the sum of $101,753. The second respondent’s claim against the applicants was dismissed. The third respondent recovered a judgment on a counterclaim against the first respondent in the sum of $5,495. There were orders for contribution between the applicants and the third respondent.
The applicants were ordered to pay the costs of the first respondent. The first respondent was ordered to pay the third respondent her costs. An order was made that the first respondent recover from the applicants two thirds of the costs which she is liable to pay to the third respondent.
I have been provided with a copy of the reasons for judgment. The first respondent’s action against the applicants was for professional negligence in respect of services they provided her as their accountants. It was also claimed that the applicants failed to make disclosure to the first respondent of information in their possession which would have borne upon her decision to purchase a business.
The notice of appeal seeks the overturning of the judgment in favour of the first respondent and an order that the first and second respondents pay the applicants’ costs of action and of the appeal. In the alternative the notice of appeal seeks a reduction in the award of damages in favour of the first respondent.
On 26 October 2000 the first and second respondents lodged a cross appeal. They seek an order that the damages awarded in favour of the first respondent should also be awarded in favour of the second respondent, and that the sum be increased to $152,629.
They also seek a variation of the costs order made in favour of the first respondent by requiring the applicants to indemnify the whole of the first respondent’s liability for costs to the third respondent.
The third respondent has taken no interest in the appeal or cross appeal. Her rights will not be affected one way or the other.
On 6 February 2001 the applicants applied for an order staying the execution of the judgment and on 16 February 2001 Olsson J, by consent, ordered:
1.Until further order, Susan Myers, Susan Myers Pty Ltd (plaintiff/respondents) and Evelyn Neis (defendant/respondent) be restrained from executing the judgment of His Honour Judge Lunn made in District Court of South Australia Action 901 of 1997 on 28 September 2000 (judgment) in determination of the appeal to the Full Court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bartley v Myers

Details

AGLC: Bartley v Myers [2001] SASC 212
Case: [2001] SASC 212
Decision Date: 25 June 2001

CaseChat Overview and Summary

In Bartley v Myers, the applicants, who were the defendants in the lower court, sought an extension of time to set down an appeal and a stay of execution of the judgment. The applicants argued they were entitled to the stay due to their insurance company's failure to comply with the orders made by Justice Olsson and subsequent liquidation. Additionally, they argued personal hardships, including the loss of the first applicant's wife and their financial circumstances, warranted the stay. The respondents opposed the application for a stay and extension of time. The court found that while the applicants had special circumstances warranting an extension of time, the justice of the case did not require a stay of execution. The court reasoned that if the applicants were successful in their appeal, they could seek indemnity under the government assistance scheme for HIH, mitigating any financial hardship. Therefore, the court extended the time for setting down the appeal but refused the application for a stay.

The key issues before the court were whether special circumstances existed to warrant an extension of time to set down the appeal and whether the justice of the case required a stay of execution of the judgment. The court found that the applicants had established special circumstances but that the justice of the case did not require a stay. The court granted an extension of time but refused the stay, directing the parties to be heard on costs.

Orders