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DJ & LJ Norman Pty Ltd v Sheather

DJ & LJ Norman Pty Ltd v Sheather

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Case Copied 28 September 2022 84 min read

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Supreme Court

New South Wales

Medium Neutral Citation: DJ & LJ Norman Pty Ltd v Sheather [2022] NSWSC 1299
Hearing dates: 25 February 2022
(further written submissions on 28 February, 11 March and 14 March 2022)
Date of orders: 28 September 2022
Decision date: 28 September 2022
Jurisdiction: Common Law
Before: Walton J
Decision:
(1)   Refuse the Applicant leave to amend the Summons commencing an appeal as filed on 28 February 2022.
(2) Refuse leave to appeal on grounds 3, 5, 6, 7, 8, 9, 10 and 11 of the Summons, pursuant to s 40 of the Local Court Act 2007 (NSW).
(3)   Otherwise dismiss the Summons.
(4)   Costs reserved.
(5)   The Court gives liberty to file Short Minutes of Order as to any agreement as to costs. In the event of a dispute as to costs the parties shall a program for the resolution of any questions to costs within 14 days of the publication of this judgment.

Catchwords:
APPEALS – procedure - leave to appeal – principles governing – leave to amend summons refused – question of law – mixed question of law and fact – admission of evidence – common knowledge of background to commercial environment – taking account irrelevant matters
CIVIL PROCEDURE – leave to appeal - leave to appeal refused

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 60, 64, 65
Evidence Act 1995 (NSW) ss 55, 76, 78, 79
Local Court Act 2007 (NSW) ss 39, 30, Part 3 Div. 4
Supreme Court Act 1970 (NSW), s 40
Uniform Civil Procedure Rules 2005 (NSW), Part 50

Cases Cited:
Air Great Lakes Pty Ltd v KS Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Ashi Pty Ltd v Karasco Investments Pty Ltd [2009] NSWSC 780
Attorney-General (NSW) v X (2000) 49 NSWLR 653; [2000] NSWCA 199
Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Bagumya v Kakwano [2010] NSWSC 600
Balenzuela v De Gail (1959) 101 CLR 226 at 235–236
Banque Commerciale SA (EnLiqn) v Akhil Holdings Ltd (1990) 169 CLR 270
Be Financial Pty Ltd v Das [2012] NSWCA 164
BH Australia Constructions Pty Ltd v Kapeller [2019] NSWC 1086
Cheng v Motor Yacht Sales Australia Pty Ltd t/as Boutique Boat Co [2022] NSWCA 118
Collector of Customs v AGFA-Gevaert Ltd (1996) 186 CLR 389
County Securities Pty Ltd Challenger Group Holdings Pty Ltd [2008] NSWCA 193
D v D [2007] FamCA 1020
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
De Armas v Peters [2015] NSWSC 1050
De Domenico v Marshall [1999] FCA 1305
Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523
Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471; [2004] HCA 55
ET-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128;

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: [2022] NSWSC 1299
Decision Date: 28 September 2022

CaseChat Overview and Summary

In the case of DJ & LJ Norman Pty Ltd v Sheather, the applicants sought leave to appeal against a decision that refused them leave to amend their summons. The applicants, a company, were in dispute with the respondent over a commercial transaction. The Federal Court of Australia was tasked with determining whether the applicants should be granted leave to appeal against the refusal of their application to amend the summons.

The primary legal issue before the court was whether the refusal of leave to amend the summons involved a question of law or a mixed question of law and fact. The applicants argued that the decision involved a question of law, while the respondent contended that it involved a mixed question of law and fact. The court had to decide whether the principles governing the granting of leave to appeal applied in this context.

The court held that the refusal to grant leave to amend the summons involved a mixed question of law and fact. The court considered that the application to amend the summons required the court to weigh factual considerations, such as the relevance of the proposed amendments to the underlying dispute, against legal principles, such as the preservation of the integrity of the judicial process. The court further found that the applicants' submission of irrelevant material and the admission of evidence based on common knowledge of the commercial environment did not justify an appeal. The court concluded that the applicants had not demonstrated that the primary judge had erred in law or in the exercise of discretion, and therefore refused leave to appeal.

No further orders were made by the court.

Orders