Franks v Cameron - [2024] NSWCA 56

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Franks v Cameron [2024] NSWCA 56
Hearing dates: 7 March 2024
Decision date: 15 March 2024
Before: Leeming JA at [1];
Adamson JA at [111];
Stern JA at [112]
Decision:
Appeal dismissed with costs

Catchwords:
PROCEDURE - dismissal for default - summons seeking appointment of trustees for sale of co-owned land - cross-claim seeking orders that defendant/cross-claimant was sole owner - cross-claimant did not appear at hearing - formal application for adjournment based on loss of legal representation, not being supplied with documents and psychiatric injury - informal application on morning of hearing based on cross-claim suffering cardiac episode - primary judge permitted cross-claimant to establish extenuating circumstances to justify adjournment - following subsequent contested hearing, primary judge not satisfied extenuating circumstances established - cross-claim dismissed and trustees for sale appointed - whether appeal as of right - nature of appeal - whether primary judge erred in not being satisfied

Legislation Cited:
Conveyancing Act 1919 (NSW), s 66G
Evidence Act 1995 (NSW), s 140
Uniform Civil Procedure Rules 2005 (NSW), rr 7.29, 7.36, 36.16, 42.1

Cases Cited:
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Cameron v Franks [2023] NSWSC 437
Cameron v Franks (No 2) [2023] NSWSC 929
Cooke v Tweed Shire Council [2024] NSWCA 50
Foundas v Arambatzis (No 3) [2020] NSWCA 87
Franks v Franks [2013] NSWCA 60
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Pham v Gall (2020) 102 NSWLR 269; [2020] NSWCA 116
Sali v SPC Ltd (1993) 67 ALJR 841; [1993] HCA 47

Category: Principal judgment
Parties: Gregory Franks (Appellant)
Brad Cameron (First Respondent)
Alan Priest (Second Respondent)
Nerryl Doney (Third Respondent)
Representation:
Counsel:
Appellant self-represented
M Cobb-Clark (First Respondent)
Solicitors:
Attwood Marshall Lawyers (First Respondent)

File Number(s): 2023/285026
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Equity

Citation:

[2023] NSWSC 929

Date of Decision:

11 August 2023

Before:

Robb J

File Number(s):

2022/00010944

JUDGMENT

LEEMING JA: Mr Gregory Michael Franks and Mr Brad Alan Cameron are brothers who have been estranged for some years. They are co-owners of land at Port Macquarie. The first respondent, Mr Cameron, has sought by amended summons to have trustees for sale appointed, and that has occurred (the second and third respondents are the trustees who have filed submitting appearances). The appellant, Mr Franks, had sought by his cross-claim to obtain full ownership of the land. On the date fixed for final hearing of the summons and cross-claim, Mr Franks did not appear. At 9.34am that morning, the primary judge’s Associate received an email which recorded that a friend of Mr Franks had left a telephone message at 9.22am as follows:

The defendant has been taken to hospital and is unable to attend.…

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 Franks v Cameron

Details

AGLC: Franks v Cameron [2024] NSWCA 56
Case: [2024] NSWCA 56
Decision Date: 15 March 2024

CaseChat Overview and Summary

The appeal concerned a dispute over co-owned land. The plaintiff, Franks, sought the appointment of trustees for sale, while the defendant and cross-claimant, Cameron, asserted sole ownership. Cameron did not appear at the hearing before the primary judge, leading to the dismissal of her cross-claim and the appointment of trustees for sale. Cameron sought to appeal this decision.

The central legal issues before the Court of Appeal were whether Cameron had a right of appeal as of right, the nature of that appeal, and whether the primary judge erred in finding that Cameron had not established sufficient extenuating circumstances to justify an adjournment of the hearing.

The Court of Appeal held that Cameron did not have an appeal as of right, as the primary judge's decision to dismiss the cross-claim and appoint trustees for sale was not a final judgment in the sense required for an automatic right of appeal. Furthermore, the Court found that the primary judge had not erred in their assessment of the alleged extenuating circumstances. The primary judge had permitted Cameron an opportunity to establish these circumstances, but ultimately was not satisfied that they were sufficiently established to warrant an adjournment.

Consequently, the appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Franks v Cameron [2024] NSWCA 56
Hearing dates:	7 March 2024
Decision date:	15 March 2024
Before:	Leeming JA at [1]; Adamson JA at [111]; Stern JA at [112]
Decision:	Appeal dismissed with costs
Catchwords:	PROCEDURE - dismissal for default - summons seeking appointment of trustees for sale of co-owned land - cross-claim seeking orders that defendant/cross-claimant was sole owner - cross-claimant did not appear at hearing - formal application for adjournment based on loss of legal representation, not being supplied with documents and psychiatric injury - informal application on morning of hearing based on cross-claim suffering cardiac episode - primary judge permitted cross-claimant to establish extenuating circumstances to justify adjournment - following subsequent contested hearing, primary judge not satisfied extenuating circumstances established - cross-claim dismissed and trustees for sale appointed - whether appeal as of right - nature of appeal - whether primary judge erred in not being satisfied
Legislation Cited:	Conveyancing Act 1919 (NSW), s 66G Evidence Act 1995 (NSW), s 140 Uniform Civil Procedure Rules 2005 (NSW), rr 7.29, 7.36, 36.16, 42.1
Cases Cited:	Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Cameron v Franks [2023] NSWSC 437 Cameron v Franks (No 2) [2023] NSWSC 929 Cooke v Tweed Shire Council [2024] NSWCA 50 Foundas v Arambatzis (No 3) [2020] NSWCA 87 Franks v Franks [2013] NSWCA 60 House v The King (1936) 55 CLR 499; [1936] HCA 40 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 Pham v Gall (2020) 102 NSWLR 269; [2020] NSWCA 116 Sali v SPC Ltd (1993) 67 ALJR 841; [1993] HCA 47
Category:	Principal judgment
Parties:	Gregory Franks (Appellant) Brad Cameron (First Respondent) Alan Priest (Second Respondent) Nerryl Doney (Third Respondent)
Representation:	Counsel: Appellant self-represented M Cobb-Clark (First Respondent) Solicitors: Attwood Marshall Lawyers (First Respondent)
File Number(s):	2023/285026
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Equity Citation: [2023] NSWSC 929 Date of Decision: 11 August 2023 Before: Robb J File Number(s): 2022/00010944