Dee-Tech Pty Ltd v Neddam Holdings Pty Ltd

[2010] NSWCA 151

New South Wales

Court of Appeal

CITATION:	DEE-TECH PTY LTD & ANOR V NEDDAM HOLDINGS PTY LTD [2010] NSWCA 151
HEARING DATE(S):	28/06/2010
JUDGMENT DATE:	28 June 2010
JUDGMENT OF:	Handley AJA at 1
DECISION:	(1) Any further evidence to be relied on by the appellants on the motion, or in the appeal pursuant to leave to file further evidence, is to be filed and served on or before 5pm on 12 July, together with any amended motion for leave to adduce further evidence, and any supplementary written submissions by the appellants based upon the further evidence they seek to adduce. (2) Any evidence by the respondents in answer to the existing evidence on the motion or any further evidence filed by the appellants is to be filed and served on or before 5pm on 16 August. (3) I extend the time for filing the respondents’ written submissions until and including 5pm on 16 August. (4) The respondents are to notify the appellants on or before 5 pm on 16 August of any request for any of the deponents of the appellants’ affidavits to attend for cross-examination. (5) Any evidence by the appellants in reply is to be filed and served by 5pm on 23 August, together with any requests by the appellants for deponents of affidavits filed for the respondents to attend for cross-examination. (6) Any subpoenas which either party wishes to issue are to be made returnable before the Registrar of this Court on Monday 23 August. (7) I extend the time for filing the Orange Book until Monday 30 August, and direct the appellants to include in a separate section all further evidence, the submissions on the motion and the appeal and this judgment. (8) I order that the costs of the motion to date be reserved to the Full Court.
CATCHWORDS:	PRACTICE & PROCEDURE - Court of Appeal - further evidence - motion for leave to adduce - to be heard by Court hearing appeal - not by single judge.
LEGISLATION CITED:	Supreme Court Act
CATEGORY:	Procedural and other rulings
PARTIES:	Appellants: Bright Star Laundry Pty Limited ACN 096 784 342 Bright Star Pty Limited Dee-Tech Pty Ltd Respondent: Neddam Holdings Pty Ltd
FILE NUMBER(S):	CA 07/254642
COUNSEL:	A: D Mackay R: PT Taylor and MJ Moir
SOLICITORS:	A: Fordyce, Paul Mervyn R:Craig Doyle, McDonald Johnson

2007/254642

HANDLEY AJA

MONDAY 28 JUNE 2010

DEE-TECH PTY LTD & ANOR v NEDDAM HOLDINGS PTY LTD

Judgment

1 HIS HONOUR: An appeal is pending from a judgment of Gzell J, delivered on 8 December 2009, in which his Honour made an order for possession and dismissed the tenant's claim for relief against forfeiture.

2 The ground for forfeiture upheld by Gzell J was the tenant's failure to take out and maintain an insurance policy which protected the interest of the landlord in the premises in accordance with the requirements of the lease. The appeal is currently fixed for hearing before a Full Court on 14 September this year.

3 On 17 June the appellants filed a notice of motion seeking orders under s75A of the Supreme Court Act for the admission of further evidence in the appeal, perhaps as fresh evidence or perhaps as evidence of matters occurring since the trial. That motion came before me today.

4 Counsel for the applicants sought to have the motion referred to the Full Court to be listed on the day fixed for the hearing of the appeal. Senior Counsel for the respondents to the motion, and the respondents to the appeal, invited me to decide the application on its merits. Section 46(2)(b) of the Supreme Court Act permits a single Judge to make orders in matters of practice and procedure in relation to appeals, but a single Judge cannot make an order which involves the determination or decision of the appeal.

5 The decision on the motion may have a material effect on the outcome of the appeal. Even if any order I made on the merits did not determine the appeal as a matter of law, the principle behind s 46(2) (b) would favour a motion of this character being dealt with by the Full Court hearing the substantive appeal.

6 In any event s 75A (7), (8), and (9) appear to contemplate that a decision to receive further evidence will be made by the Court hearing the appeal on the merits.

7 For those reasons I decline to deal with the motion on its merits and order that it be referred to the Full Court, to be listed on 14 September with the substantive appeal.

8 However further consequential directions should be given for the prosecution of the motion and the appeal.

9 I therefore give the following directions:

(1) Any further evidence to be relied on by the appellants on the motion, or in the appeal pursuant to leave to file further evidence, is to be filed and served on or before 5pm on 12 July, together with any amended motion for leave to adduce further evidence, and any supplementary written submissions by the appellants based upon the further evidence they seek to adduce.

(2) Any evidence by the respondents in answer to the existing evidence on the motion or any further evidence filed by the appellants is to be filed and served on or before 5pm on 16 August.

(3) I extend the time for filing the respondents’ written submissions until and including 5pm on 16 August.

(4) The respondents are to notify the appellants on or before 5 pm on 16 August of any request for any of the deponents of the appellants’ affidavits to attend for cross-examination.

(5) Any evidence by the appellants in reply is to be filed and served by 5pm on 23 August, together with any requests by the appellants for deponents of affidavits filed for the respondents to attend for cross-examination.

(6) Any subpoenas which either party wishes to issue are to be made returnable before the Registrar of this Court on Monday 23 August.

(7) I extend the time for filing the Orange Book until Monday 30 August, and direct the appellants to include in a separate section all further evidence, the submissions on the motion and the appeal and this judgment.

(8) I order that the costs of the motion to date be reserved to the Full Court.

**********