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…

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.

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Details

Case: [2010] NSWCA 151
Decision Date: 28 June 2010

CaseChat Overview and Summary

In the matter of *Dee-Tech Pty Ltd v Neddam Holdings Pty Ltd*, the Court of Appeal considered a motion for leave to adduce further evidence.

The central legal issue before the Court was whether the motion for leave to adduce further evidence should be heard by the Full Court, as part of the appeal, or by a single judge.

Handley AJA determined that the motion for leave to adduce further evidence was a matter for the Full Court hearing the appeal. The Court then made detailed orders regarding the filing and service of further evidence, amended motions, supplementary submissions, and the attendance of deponents for cross-examination, setting specific timelines for each. The costs of the motion were reserved to the Full Court.

Orders

Orders of the court

(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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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