Fleming v Marshall - [2012] NSWCA 144

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Fleming v Marshall [2012] NSWCA 144
Hearing dates: 7 May 2012
Decision date: 07 May 2012
Before: Tobias AJA
Decision:
(a) Pursuant to s 51(2) of the Supreme Court Act 1970 (NSW), I remit the notice of motion filed in this court on 9 March 2012 to the Common Law Division of the Supreme Court, to be listed before Justice Schmidt on 25 May 2012 without prejudice to any determination by her Honour as to whether she will hear that notice of motion at the same time as she hears the amended notice of motion filed on 13 March 2012.
(b) Each party is to pay their own costs to date of the notice of motion filed in this Court on 9 March 2012.
[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 - Notice of motion - Order was sought to stay the enforcement of a costs judgment- Unnecessary to determine the notice of motion as the respondents do not seek to enforce the costs judgment until further proceedings in the Common Law Division of the Supreme Court have been heard and determined - Notice of motion remitted to the Common Law Division of the Supreme Court - Costs of the notice of motion
Legislation Cited: Legal Profession Act 2004
Supreme Court Act 1970 (NSW)
Cases Cited: Fleming v Marshall [2011] NSWCA 86
Marshall v Fleming [2010] NSWSC 86
Category: Procedural and other rulings
Parties: Francis G FLEMING and others (applicants)
Margaret Lesley MARSHALL (first respondent)
Kim Neil MARSHALL (second respondent)
Representation: Counsel:
P S Braham SC/ E Bishop (applicants)
C J Bevan/ E W Young (respondents)
Solicitors:
Kennedys (applicants)
Turner Freeman (respondents)

File Number(s): 2010/62931

Judgment

TOBIAS AJA: In this matter, the applicants who are a New York firm of attorneys were sued by the respondents on various causes of action, the details of which are not presently relevant. They filed a notice of motion to have the proceedings stayed so that they could be commenced in New York. The notice of motion came before Rothman J who on 19 February 2010 dismissed it with costs. Marshall v Fleming [2010] NSWSC 86.

An appeal to this Court was then instituted, but on 8 April 2011 was dismissed with costs: Fleming v Marshall [2011] NSWCA 86. The costs ordered by Rothman J have not yet been assessed and in any event cannot be enforced until the substantive proceedings are concluded.

The costs ordered in the Court of Appeal were assessed in the sum of $150,343.12 and pursuant to the provisions of s 368(5)…

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.

Continue reading Fleming v Marshall

Details

AGLC: Fleming v Marshall [2012] NSWCA 144
Case: [2012] NSWCA 144
Decision Date: 07 May 2012

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the applicant, Fleming, sought a stay of enforcement of a costs judgment against the respondent, Marshall. The dispute arose in the context of ongoing proceedings in the Common Law Division of the Supreme Court.

The primary legal issue before the court was whether to grant the stay of the costs judgment. However, the court noted that the respondents did not intend to enforce the costs judgment until further proceedings in the Common Law Division were concluded.

Given this concession, Tobias AJA determined that it was unnecessary to adjudicate the notice of motion for the stay. Instead, the court remitted the notice of motion to the Common Law Division for determination by Justice Schmidt. The court also ordered that each party bear their own costs in relation to the notice of motion filed in the Court of Appeal.

Orders

Orders of the court

(a) Pursuant to s 51(2) of the Supreme Court Act 1970 (NSW), I remit the notice of motion filed in this court on 9 March 2012 to the Common Law Division of the Supreme Court, to be listed before Justice Schmidt on 25 May 2012 without prejudice to any determination by her Honour as to whether she will hear that notice of motion at the same time as she hears the amended notice of motion filed on 13 March 2012.

(b) Each party is to pay their own costs to date of the notice of motion filed in this Court on 9 March 2012.

[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.]

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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Medium Neutral Citation:	Fleming v Marshall [2012] NSWCA 144
Hearing dates:	7 May 2012
Decision date:	07 May 2012
Before:	Tobias AJA
Decision:	(a) Pursuant to s 51(2) of the Supreme Court Act 1970 (NSW), I remit the notice of motion filed in this court on 9 March 2012 to the Common Law Division of the Supreme Court, to be listed before Justice Schmidt on 25 May 2012 without prejudice to any determination by her Honour as to whether she will hear that notice of motion at the same time as she hears the amended notice of motion filed on 13 March 2012. (b) Each party is to pay their own costs to date of the notice of motion filed in this Court on 9 March 2012. [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 - Notice of motion - Order was sought to stay the enforcement of a costs judgment- Unnecessary to determine the notice of motion as the respondents do not seek to enforce the costs judgment until further proceedings in the Common Law Division of the Supreme Court have been heard and determined - Notice of motion remitted to the Common Law Division of the Supreme Court - Costs of the notice of motion
Legislation Cited:	Legal Profession Act 2004 Supreme Court Act 1970 (NSW)
Cases Cited:	Fleming v Marshall [2011] NSWCA 86 Marshall v Fleming [2010] NSWSC 86
Category:	Procedural and other rulings
Parties:	Francis G FLEMING and others (applicants) Margaret Lesley MARSHALL (first respondent) Kim Neil MARSHALL (second respondent)
Representation:	Counsel: P S Braham SC/ E Bishop (applicants) C J Bevan/ E W Young (respondents) Solicitors: Kennedys (applicants) Turner Freeman (respondents)
File Number(s):	2010/62931