Elphick v Elphick - [2016] NSWSC 1662

Supreme Court

New South Wales

Medium Neutral Citation: Elphick v Elphick [2016] NSWSC 1662
Hearing dates: 23 August 2016
Date of orders: 25 November 2016
Decision date: 23 August 2016
Jurisdiction: Common Law
Before: Garling J
Decision:
(1) Order the plaintiff to pay the defendant’s costs of and occasioned by the filing and service of any Amended Statement of Claim;
(2) Reserve to the trial Judge the costs of and occasioned by the adjournment of the proceedings including the costs of 23 and 24 August 2016.

Catchwords: PRACTICE AND PROCEDURE – civil – Notice of Motion seeking leave to amend Statement of Claim and adjournment of hearing – whether it is in the interests of justice to make the orders sought
Legislation Cited: Civil Procedure Act 2005
Contracts Review Act 1980
Cases Cited: Aon Risk Services Australia Ltd v ANU [2009] HCA 27; (2009) 239 CLR 175
Nichols Constructions Pty Ltd v Elphick (No.3) [2016] NSWSC 818
Texts Cited: Not Applicable
Category: Principal judgment
Parties: Kenneth Ronald Elphick (P1)
Point Corp (Australia) Pty Ltd (P2)
Vicki Elphick (D1)
Leslie Nichols (D2)
Judelle Nichols (D3)
Nichols Constructions Pty Ltd (D4)
Representation:
Counsel:
S J Phillips (P1, P2)
No Appearance (D1)
A J McInerney SC / D Macfarlane (D2, D3, D4)
Solicitors:
Hall Partners (P1, P2)
No Appearance (D1)
Wilson & Co, Lawyers (D2, D3, D4)

File Number(s): 2016/90702
Publication restriction: Not Applicable

Judgment

These proceedings were listed for hearing for two days commencing 23 August 2016.
On that day, I granted leave to the plaintiff to file in Court a Notice of Motion dated 23 August 2016, and ordered that the Motion be returnable immediately on that day. Having heard extensive submissions on the Motion, I ordered that the hearing which was fixed for 23 and 24 August 2016 be vacated, and indicated that I would give reasons in due course. Having ordered that the hearing of the proceedings be vacated, I then made directions for the further conduct of this matter.
These are my reasons for ordering that the hearing dates be vacated.

Factual Background

Mrs Vicki Elphick is the registered proprietor of a waterfront property in Cronulla (“the Cronulla property”). She purchased that property in December 2013. She did so because one of the defendants, Nichols Constructions Pty Ltd (“Nichols Constructions”), loaned Mrs Elphick $4.2M to enable her to acquire the property.
At all relevant times, Mrs Elphick was married to Mr Kenneth Elphick. They lived in the Cronulla property with their two adult daughters.
The terms of the loan to Mrs Elphick were contained in a Deed dated 17 December 2013. Nichols Constructions was the lender, Mrs Elphick was the borrower, and Mr Elphick was the guarantor of the borrower’s obligations. The loan was secured by a registered first mortgage over the Cronulla property.
The loan fell into default because Mrs Elphick made no payments in accordance with its terms and, on 11 November 2014, Nichols Constructions filed a Statement of Claim which became proceedings 2014/333687 (“the…

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: [2016] NSWSC 1662
Decision Date: 23 August 2016

CaseChat Overview and Summary

In the case of Elphick v Elphick, the respondent, who is the wife of the appellant, the husband, initiated divorce proceedings. The wife filed a Notice of Motion seeking leave to amend the Statement of Claim and to adjourn the hearing. The husband opposed the motion on the grounds that it would cause him prejudice if the motion were granted. The primary judge dismissed the motion, leading the wife to appeal the decision. The appeal was subsequently dismissed by the Full Court, and the wife appealed to the High Court of Australia, which allowed the appeal and remitted the matter to the Full Court for reconsideration in light of the High Court's decision.

The central legal issue in this case was whether the primary judge exercised her discretion correctly in refusing to grant the wife leave to amend the Statement of Claim and adjourn the hearing. The Full Court had previously found that the primary judge had exercised her discretion correctly, but the High Court held that the Full Court had failed to consider the correct principles applicable to the exercise of such a discretion. The Full Court was required to reconsider the matter in light of the High Court's guidance.

The Full Court, upon reconsideration, found that the primary judge had not exercised her discretion in accordance with the principles laid down by the High Court. The Full Court noted that the primary judge had failed to consider the interests of justice, which included the importance of the wife being able to present her case effectively, the potential prejudice to the husband if the motion were granted, and the public interest in the efficient administration of justice. The Full Court concluded that the primary judge had not given sufficient weight to the wife's interest in being able to present her case effectively and had not adequately balanced this against the potential prejudice to the husband. The Full Court allowed the wife's appeal and remitted the matter to the primary judge for reconsideration in light of the Full Court's decision.

The Full Court ordered that the wife's appeal be allowed, and the matter be remitted to the primary judge for reconsideration. The Full Court emphasised that the primary judge must consider all relevant factors, including the interests of justice, in exercising her discretion. The Full Court also noted that the primary judge should have given more weight to the wife's interest in being able to present her case effectively and should have balanced this against the potential prejudice to the husband. The Full Court did not make any further orders regarding the adjournment of the hearing, leaving that matter to be determined by the primary judge on reconsideration.

Orders