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
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
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
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:
Solicitors:
Mr L Smits (Sol) (Appellants)
Mr M R Pesman SC and Mr F Salama (Respondent)
Murray Laws Pty Ltd (Appellants)
Ark Legal (Respondent)
File Number(s): 2022/305853 Publication…
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- Case
- [2023] NSWCA 166
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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