French v Bremner (No 2)

[2020] NSWCA 211

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

French v Bremner (No 2) [2020] NSWCA 211

Hearing dates:

4 September 2020

Decision date:

04 September 2020

Before:

Basten JA

Decision:

(1)   In relation to the motion filed by Mr French on 4 August 2020:

(a)   Dismiss the motion.

(b)   Order that the costs of the motion be costs in the cross-appeal.

(2)   In relation to the motion filed by Ms Bakey on 4 August 2020:

(a)   Dismiss the motion.

(b)   Order that the second cross-respondent’s costs of the motion be her costs in the cross-appeal.

Catchwords:

PRACTICE AND PROCEDURE – appeal and cross-appeal – failure to prosecute with due despatch – application to dismiss cross-appeal – non-compliance with directions for filing submissions – indulgences granted by extending dates – submissions filed by extended date – Uniform Civil Procedure Rules 2005 (NSW), r 12.7

PRACTICE AND PROCEDURE – appeal and cross-appeal – cross-appeal – procedural irregularity – notice of cross-appeal to commence proceedings against non-appellant – proceedings lacking in merit – whether frivolous, vexatious or an abuse of process – Uniform Civil Procedure Rules 2005 (NSW), r 13.4

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56

Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 13.4

Cases Cited:

Chamberlain Group Pty Ltd v Kids for Life Academy Pty Ltd [2015] NSWCA 241

French v Bremner [2020] NSWCA 77

Category:

Procedural and other rulings

Parties:

Andrew Boyd French (Appellant / First Cross-Respondent)
Christopher Bremner (Respondent / Cross-Appellant)
Gabrielle June Bakey (Second Cross-Respondent)

Representation:

Counsel:
Appellant / First Cross-Respondent in person
Mr A Harding (First Respondent / Cross-Appellant))
Ms G Bakey in person (Second Cross-Respondent)

Solicitors:
Applicant self-represented
Johnson Winter & Slattery (Respondent)

File Number(s):

2019/285092

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Equity – Commercial List

Citation:

[2019] NSWSC 1033

Date of Decision:

15 August 2019

Before:

Parker J

File Number(s):

2014/101136

Judgment

1. BASTEN JA: Over the years prior to 2014 the appellant, Andrew Boyd French, and the respondent, Christopher Bremner, were engaged in commercial activities which resulted in the purchase of a number of rural properties in Victoria and one in New South Wales. Proceedings commenced against Mr French by Provident Capital Ltd (Receivers and managers appointed) (In liq) in 2014 were resolved. However, a cross-claim brought by Mr French joined Dr Bremner in the proceedings. Dr Bremner then filed his own cross-claim against Mr French and against Mr French’s de facto partner, Gabrielle June Bakey. (One of the Victorian properties was registered in Ms Bakey’s name.)

2. Following a trial of the cross-claims in the Equity Division, Parker J dismissed all of Mr French’s claims and Dr Bremner’s cross-claims with respect to the properties, including the cross-claim against Ms Bakey. Otherwise, Dr Bremner was successful in obtaining a judgment for repayment of a loan in an amount of $3.15 million, together with interest. Orders were made for the sale of the properties held in joint names.

3. On 15 November 2019 Mr French filed a notice…