Ellis v Newton

[2012] NSWCA 22

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Ellis v Newton [2012] NSWCA 22

Hearing dates:

27 February 2012

Decision date:

27 February 2012

Before:

Young JA

Decision:

Notice of motion to dismiss for incompetence is dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PRACTICE AND PROCEDURE- trial judge refuses adjournment, proceeds and finds a verdict for $189,000- Defendants appeal solely on ground that adjournment wrongly refused- Appellants seek to set aside judgment accordingly- Held interlocutory decision affected final result- appeal competent.

Cases Cited:

Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478

Category:

Interlocutory applications

Parties:

Daniel Ellis (Applicant/Respondent)
Richard Newton (First Appellant)
Robyn Laidlaw Newton (Second Appellant)

Representation:

A Stafford (Applicant/Respondent)
A C Kinghan (S) (First Appellant)
B Levet (Second Appellant)
Constantine G Pavlis and Co (Applicant/Respondent)
Kinghan & Associates (First Appellant)
Ronayne Lawyers (Second Appellant)

File Number(s):

CA 2008/279436

Judgment

1. HIS HONOUR: This is a motion to dismiss an appeal for its alleged incompetence. The appeal is in respect of a decision made by Rein J in the Equity Division. The learned primary judge was asked to adjourn the proceedings. He decided that that would not be the appropriate course and went on to hear the case forthwith and gave a judgment against the appellants for $189,000.

1. Even though the only ground of appeal is that his Honour was in error in refusing the adjournment, the appellants ask that the whole judgment be set aside because if his Honour were wrong on the adjournment question and the matter were adjourned and the appellants put on the material that they intended to put on, the result might have been quite different.

1. The respondent has urged me to follow what the High Court said in Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478, para 6. Paragraph 6 says:

"The proposition that any interlocutory order can be challenged in an appeal against the final judgment in the matter is often stated in unqualified terms. The better view, however, is reflected in the formulation adopted in Spencer Bower, Turner and Handley, where it is said that 'on an appeal from the final order an appellate court can correct any interlocutory order which affected the final result.'"

("which affected the final result" is in the High Court's judgment in italics with the words "emphasis added").

1. In the present case it seems to me that the interlocutory decision to refuse an adjournment did affect the final result and the appeal is competent. Accordingly, the notice of motion to dismiss for incompetence is dismissed with costs.

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Decision last updated: 01 March 2012