Gladio Pty Ltd v Buckworth - [2016] NSWCA 321

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Gladio Pty Ltd v Buckworth [2016] NSWCA 321
Hearing dates: 19 October 2016
Date of orders: 19 October 2016
Decision date: 24 November 2016
Before: McColl JA, Sackville AJA, Emmett AJA
Decision:
Application for leave to appeal dismissed with costs

Catchwords: COSTS – claim for declaration that contract validly rescinded – success in proceedings below but each party ordered to pay own costs – application of UCPR, r 42.34 – whether continuation of proceedings in Supreme Court warranted when District Court did not have jurisdiction to make declaration –
whether the ground of denial of procedural fairness had sufficient prospects of success where the issue of costs was decided on the papers – whether there had been any substantial injustice resulting from the orders made by the primary judge – if Court of Appeal re-exercised any discretion, whether there was any real prospect that a substantial order for costs would have been made in favour of the applicant – whether the re-exercise of the court’s discretion would result in a different outcome concerning the applicant’s request for a Bullock order
Legislation Cited:
Competition and Consumer Act 2010 (Cth), Sch 2
Fair Trading Act 1987 (NSW)
Frustrated Contracts Act 1978 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Buckworth v Gladio Pty Ltd [2016] NSWCA 54
Gladio Pty Ltd v Buckworth [2015] NSWSC 922
Gladio Pty Ltd v Buckworth (No 2) [2015] NSWSC 1462
La La Land Byron Bay Pty Ltd v The Independent Liquor and Gaming Authority [2015] NSWCA 254
Category: Principal judgment
Parties: Gladio Pty Limited (Applicant)
Virginia Louise Buckworth (Respondent)
Representation:
Counsel:
Mr G Lucarelli (Applicant)
Mr D E Grieve QC (Respondent)
Solicitors:
Minter Ellison (Applicant)
PCR Law & Associates (Respondent)

File Number(s): 2015/247536
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2015] NSWSC 1462

Date of Decision:

8 October 2015

Before:

McDougall J

File Number(s):

2013/359269

Judgment

THE COURT: By amended summons filed on 24 August 2016, Gladio Pty Limited (Gladio) seeks leave to appeal from orders made by a judge of the Equity Division on 8 October 2015 (the primary judge) in proceedings brought by Gladio against Ms Virginia Buckworth (Ms Buckworth) and Ashdown Home Units Pty Limited (Ashdown). [1] An order has been made that the appeal, if leave be granted, be heard concurrently with the application for leave. On 19 October 2016 the Court refused leave and ordered Gladio to pay the costs of the application for leave.
1. Gladio Pty Ltd v Buckworth (No 2) [2015] NSWSC 1462.
These are the Court’s reasons for making those orders. In determining a leave application, the Court is not required to give reasons such as would be appropriate on an appeal after a full hearing on the merits of the appeal. Reasons for determining an application for leave may be short, so long as they are appropriate,…

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] NSWCA 321
Decision Date: 24 November 2016

CaseChat Overview and Summary

Gladio Pty Ltd (the applicant) sought leave to appeal from a decision of the primary judge concerning costs in proceedings where it had claimed a declaration that a contract had been validly rescinded. The primary judge had ordered that each party bear their own costs, despite the applicant's success in the proceedings below.

The Court of Appeal was required to determine whether the continuation of the proceedings in the Supreme Court was warranted, given that the District Court, where the matter may have originated, lacked jurisdiction to make the declaration sought. Further issues included whether the applicant's ground of denial of procedural fairness had sufficient prospects of success, particularly as the costs issue was decided on the papers, and whether any substantial injustice had resulted from the primary judge's orders. The court also considered whether, if it re-exercised its discretion, there was a real prospect of a substantial costs order in favour of the applicant or a different outcome regarding a Bullock order.

The Court of Appeal found that the applicant had not demonstrated any substantial injustice resulting from the primary judge's costs orders. The court concluded that there was no real prospect that a different outcome concerning costs, including a Bullock order, would have been achieved even if the Court of Appeal had re-exercised the discretion.

The application for leave to appeal was dismissed with costs.

Orders

Orders of the court

Application for leave to appeal dismissed with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Gladio Pty Ltd v Buckworth [2016] NSWCA 321
Hearing dates:	19 October 2016
Date of orders:	19 October 2016
Decision date:	24 November 2016
Before:	McColl JA, Sackville AJA, Emmett AJA
Decision:	Application for leave to appeal dismissed with costs
Catchwords:	COSTS – claim for declaration that contract validly rescinded – success in proceedings below but each party ordered to pay own costs – application of UCPR, r 42.34 – whether continuation of proceedings in Supreme Court warranted when District Court did not have jurisdiction to make declaration – whether the ground of denial of procedural fairness had sufficient prospects of success where the issue of costs was decided on the papers – whether there had been any substantial injustice resulting from the orders made by the primary judge – if Court of Appeal re-exercised any discretion, whether there was any real prospect that a substantial order for costs would have been made in favour of the applicant – whether the re-exercise of the court’s discretion would result in a different outcome concerning the applicant’s request for a Bullock order
Legislation Cited:	Competition and Consumer Act 2010 (Cth), Sch 2 Fair Trading Act 1987 (NSW) Frustrated Contracts Act 1978 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Buckworth v Gladio Pty Ltd [2016] NSWCA 54 Gladio Pty Ltd v Buckworth [2015] NSWSC 922 Gladio Pty Ltd v Buckworth (No 2) [2015] NSWSC 1462 La La Land Byron Bay Pty Ltd v The Independent Liquor and Gaming Authority [2015] NSWCA 254
Category:	Principal judgment
Parties:	Gladio Pty Limited (Applicant) Virginia Louise Buckworth (Respondent)
Representation:	Counsel: Mr G Lucarelli (Applicant) Mr D E Grieve QC (Respondent) Solicitors: Minter Ellison (Applicant) PCR Law & Associates (Respondent)
File Number(s):	2015/247536
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2015] NSWSC 1462 Date of Decision: 8 October 2015 Before: McDougall J File Number(s): 2013/359269