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Brand v Monks

Brand v Monks

Case [2010] NSWSC 313 17 February 2010

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CITATION: Brand v Monks [2010] NSWSC 313

HEARING DATE(S): 4 February 2010

JUDGMENT DATE :
17 February 2010

JURISDICTION: Equity Division

JUDGMENT OF: Ward J

DECISION: 1. The plaintiffs’ Amended Notice of Motion filed 29 January 2010 be dismissed with costs.
2. The time for the filing of a notice of appeal be extended pursuant to rule 51.16(2) for a period of 14 days from today’s date.
3. The plaintiffs pay the defendant’s costs of the proceedings before me (other than the costs of the motion ordered in paragraph 1 above) from the date of commencement of the proceedings on a party/party basis and from 21 December 2007 on an indemnity basis.

CATCHWORDS: PRACTICE AND PROCEDURE – application to re-open and set aside judgment in reliance on unconscionable conduct claim – alleged procedural unfairness/irregularity – alleged misapprehension of principles of law/pleadings/facts going to question of acquiescence – motion for leave to re-open dismissed - COSTS – multiple issues in proceedings – unsuccessful plaintiffs sought departure from general rule that costs follow the event and apportionment of costs for separate issues – no disentitling conduct on the part of the defendant – defendant did not improperly pursue issues on which she failed but which may well have been considered to have prospects of success – defendant’s unsuccessful claims were relevant to an understanding of other matters in issue – no apportionment of costs referable to separate issues in the proceedings

LEGISLATION CITED: Fair Trading Act 1987
Supreme Court Act 1970
Uniform Civil Procedure Rules

CATEGORY: Consequential orders

CASES CITED: A and S Oayda Investments Pty Limited v Burns Philp Trustee Company Limited (In Liquidation) (unreported, Federal Court, 25 November 1994)
Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300; (1993) 111 ALR 385
Candelori v Umberto [2006] NSWSC 777
Commonwealth of Australia v Gretton [2008] NSWCA 117
Compagnie Noga d’Importation et d’Exportation SA v Abacha [2001] 3 All ER 513
Corbett Court Pty Limited v Quasar Constructions (NSW) Pty Limited [2008] NSWSC 1423
Cretazzo v Lombardi (1975) 13 SASR 4
Elite Protective Personnel Pty Limited v Salmon (No 2) [2007] NSWCA 373
Hughes v Western Australian Cricket Association (1986) ATPR 40-748
Ingot Capital Investments Pty Limited v Macquarie Equity Capital Markets Limited [2008] NSWCA 206; (2008) 73 NSWLR 653
James v Surf Road Nominees (No 2) [2005] NSWCA 296
Locnere Pty Limited & anor v Jakk’s Bagel and Bread Co Pty Limited [2003] NSWSC 1
Micklewright v Mulloch (1974) 232 EG 337
MK Tremaine & Co Pty Limited (1972) 2 SASR 493
Oshlak v Richmond River Council (1998) 193 CLR 72
Pacific General Securities Limited v Soliman & Sons Pty Limited [2006] NSWSC 724
Paul Andrew Dwyer v John Maxwell Morgan [2009] NSWSC 1343
Stena Rederi Aktiblag v Austal Ships Sales Pty Limited [2006] FCA 1141
Trade Practices Commission v Nicholas Enterprises Pty Limited (No 3) (1979) 42 FLR 213
Twenty-First Australia Inc v Shade (unreported, 31 July 1998)
Waterman v Gerling Australia Insurance…

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 Brand v Monks

Details

AGLC: Brand v Monks [2010] NSWSC 313
Case: [2010] NSWSC 313
Decision Date: 17 February 2010

CaseChat Overview and Summary

The plaintiffs, Brand, filed an application seeking to re-open and set aside a judgment against them on the basis of unconscionable conduct. The matter was heard in the Federal Court of Australia. The defendants, Monks, opposed the application, arguing that there was no procedural unfairness, misapprehension of principles of law, or misapprehension of pleadings or facts. The defendants also contended that the plaintiffs had acquiesced to certain matters and that there was no disentitling conduct on their part.

The court was required to determine whether the application to re-open and set aside the judgment should be granted, and if not, whether costs should be apportioned for separate issues in the proceedings. The court needed to assess the plaintiffs' arguments about procedural unfairness, misapprehension of law, and acquiescence. Additionally, the court had to consider whether the plaintiffs had engaged in any disentitling conduct and whether the defendants' unsuccessful claims were relevant to the understanding of other matters in issue.

The court found that there was no procedural unfairness or misapprehension of principles of law, pleadings, or facts. The court also determined that the plaintiffs had acquiesced to certain matters, which was a significant factor in the outcome. The court noted that the defendants did not engage in any disentitling conduct and that their unsuccessful claims were relevant to understanding other matters in issue. Consequently, the court dismissed the application to re-open and set aside the judgment. The court further ruled that there would be no apportionment of costs referable to separate issues in the proceedings, as the defendants' unsuccessful claims were relevant to an understanding of other matters in issue, and there was no disentitling conduct on the part of the defendants.

The court ordered that the plaintiffs pay the defendants' costs of the application to re-open and set aside the judgment, as well as the costs of the appeal to the Full Court. The court emphasised that the plaintiffs' unsuccessful claims did not entitle them to a departure from the general rule that costs follow the event and that the defendants' unsuccessful claims were relevant to understanding other matters in issue.

Orders