Edmonds v Barrington Winstanley Group Pty Ltd - [2023] NSWCA 166

Court of Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Edmonds v Barrington Winstanley Group Pty Ltd [2023] NSWCA 166
Hearing dates: 29 June 2023
Date of orders: 24 July 2023
Decision date: 24 July 2023
Before: Meagher JA [1];
Leeming JA [2];
Stern JA [3].
Decision:
(1) Pursuant to UCPR r 51.16(1)(c), time for filing the notice of appeal is extended to 13 October 2022.
(2) Grant leave to the first appellant under s 5 of the Felons (Civil Proceedings) Act 1981 (NSW) to institute this appeal to the extent such leave is necessary.
(3)   The notice of motion filed 19 June 2023, seeking to rely upon further evidence, should be refused.
(4)   The appeal is dismissed.
(5)   The respondent file and serve written submissions on costs, limited to two pages, within seven days of the date of these orders. The appellants then to file and serve written submissions in response, again limited to two pages, within fourteen days of the date of these orders.

Catchwords:
APPEALS – procedure – whether denial of procedural fairness in refusal of appellants’ adjournment application – appellants given reasonable opportunity to be heard – no denial of procedural fairness
APPEALS – further evidence – where appellant sought to raise arguments under Farm Debt Mediation Act 1994 (NSW) not made at trial – leave to rely on further evidence in support of new argument – arguments raise issues of fact – leave refused
DEED – construction – deed to be understood objectively having regard to commercial purpose and object

Legislation Cited:
Australian Securities and Investments Commission Act 2001 (Cth), s 12DMA
Farm Debt Mediation Act 1994 (NSW), s 8
Felons (Civil Proceedings) Act 1981 (NSW), ss 4-5
Legal Aid Commission Act 1979 (NSW), s 57
National Consumer Credit Protection Act 2009 (Cth)
Supreme Court Act 1970 (NSW), s 75A(8)
Uniform Civil Procedure Rules 2005 (NSW), r 51.16(1)(c)

Cases Cited:
Application of Malcolm Huntley Potier [2012] NSWCA 222
Charlton v National Australia Bank Limited [2021] NSWCA 111
Chen v Zhang [2009] NSWCA 202
Clark v State of New South Wales [2018] NSWCA 13
Constantinidis v Equititrust [2010] NSWSC 299
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12
Ford v Simes [2009] NSWCA 351
Harker-Mortlock v Commonwealth Bank of Australia [2019] NSWCA 56
HT v R (2019) 269 CLR 403; [2019] HCA 40
Metwally v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68
Mr D v Ms P [2020] NSWCA 174
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35
Waller v Hargraves Secured Investments Ltd (2012) 245 CLR 311; [2012] HCA 4

Category: Principal judgment
Parties: Sandra Edmonds (First Appellant)
David Edmonds (Second Appellant)
Barrington Winstanley Group Pty Ltd (Respondent)
Representation:
Counsel:
Mr L Smits (Sol) (Appellants)
Mr M R Pesman SC and Mr F Salama (Respondent)
Solicitors:
Murray Laws Pty Ltd (Appellants)
Ark Legal (Respondent)

File Number(s): 2022/305853
Publication…

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: [2023] NSWCA 166
Decision Date: 24 July 2023

CaseChat Overview and Summary

The appeal before the Court of Appeal of New South Wales concerned a dispute between Edmonds (the appellants) and Barrington Winstanley Group Pty Ltd (the respondent). The appellants sought to appeal a decision, but faced preliminary issues regarding the timing of their appeal and the ability to introduce new arguments and evidence.

The primary legal issues before the Court were whether the appellants had been denied procedural fairness in the refusal of an adjournment application, whether leave should be granted to rely on further evidence to support new arguments under the *Farm Debt Mediation Act 1994* (NSW) that were not raised at trial, and the construction of a deed.

The Court found that the appellants had been given a reasonable opportunity to be heard, and therefore, there was no denial of procedural fairness. Regarding the application to rely on further evidence, the Court determined that the new arguments raised issues of fact and, as such, leave to adduce further evidence was refused. The Court also considered the construction of the deed, applying the principle that a deed is to be understood objectively, having regard to its commercial purpose and object.

The Court made several orders, including extending the time for filing the notice of appeal, granting leave to institute the appeal to the extent necessary under the *Felons (Civil Proceedings) Act 1981* (NSW), and refusing the motion seeking to rely on further evidence. Ultimately, the appeal was dismissed, and the parties were ordered to file written submissions on costs.

Orders

Orders of the court

(1) Pursuant to UCPR r 51.16(1)(c), time for filing the notice of appeal is extended to 13 October 2022.

(2) Grant leave to the first appellant under s 5 of the Felons (Civil Proceedings) Act 1981 (NSW) to institute this appeal to the extent such leave is necessary.

(3) The notice of motion filed 19 June 2023, seeking to rely upon further evidence, should be refused.

(4) The appeal is dismissed.

(5) The respondent file and serve written submissions on costs, limited to two pages, within seven days of the date of these orders. The appellants then to file and serve written submissions in response, again limited to two pages, within fourteen days of the date of these orders.

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.

Medium Neutral Citation:	Edmonds v Barrington Winstanley Group Pty Ltd [2023] NSWCA 166
Hearing dates:	29 June 2023
Date of orders:	24 July 2023
Decision date:	24 July 2023
Before:	Meagher JA [1]; Leeming JA [2]; Stern JA [3].
Decision:	(1) Pursuant to UCPR r 51.16(1)(c), time for filing the notice of appeal is extended to 13 October 2022. (2) Grant leave to the first appellant under s 5 of the Felons (Civil Proceedings) Act 1981 (NSW) to institute this appeal to the extent such leave is necessary. (3) The notice of motion filed 19 June 2023, seeking to rely upon further evidence, should be refused. (4) The appeal is dismissed. (5) The respondent file and serve written submissions on costs, limited to two pages, within seven days of the date of these orders. The appellants then to file and serve written submissions in response, again limited to two pages, within fourteen days of the date of these orders.
Catchwords:	APPEALS – procedure – whether denial of procedural fairness in refusal of appellants’ adjournment application – appellants given reasonable opportunity to be heard – no denial of procedural fairness APPEALS – further evidence – where appellant sought to raise arguments under Farm Debt Mediation Act 1994 (NSW) not made at trial – leave to rely on further evidence in support of new argument – arguments raise issues of fact – leave refused DEED – construction – deed to be understood objectively having regard to commercial purpose and object
Legislation Cited:	Australian Securities and Investments Commission Act 2001 (Cth), s 12DMA Farm Debt Mediation Act 1994 (NSW), s 8 Felons (Civil Proceedings) Act 1981 (NSW), ss 4-5 Legal Aid Commission Act 1979 (NSW), s 57 National Consumer Credit Protection Act 2009 (Cth) Supreme Court Act 1970 (NSW), s 75A(8) Uniform Civil Procedure Rules 2005 (NSW), r 51.16(1)(c)
Cases Cited:	Application of Malcolm Huntley Potier [2012] NSWCA 222 Charlton v National Australia Bank Limited [2021] NSWCA 111 Chen v Zhang [2009] NSWCA 202 Clark v State of New South Wales [2018] NSWCA 13 Constantinidis v Equititrust [2010] NSWSC 299 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12 Ford v Simes [2009] NSWCA 351 Harker-Mortlock v Commonwealth Bank of Australia [2019] NSWCA 56 HT v R (2019) 269 CLR 403; [2019] HCA 40 Metwally v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68 Mr D v Ms P [2020] NSWCA 174 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35 Waller v Hargraves Secured Investments Ltd (2012) 245 CLR 311; [2012] HCA 4
Category:	Principal judgment
Parties:	Sandra Edmonds (First Appellant) David Edmonds (Second Appellant) Barrington Winstanley Group Pty Ltd (Respondent)
Representation:	Counsel: Mr L Smits (Sol) (Appellants) Mr M R Pesman SC and Mr F Salama (Respondent) Solicitors: Murray Laws Pty Ltd (Appellants) Ark Legal (Respondent)
File Number(s):	2022/305853
Publication…