Glenn v Kemp - [2021] NSWDC 656

District Court

New South Wales

Medium Neutral Citation: Glenn v Kemp [2021] NSWDC 656
Hearing dates: 25 November 2021
Date of orders: 25 November 2021
Decision date: 25 November 2021
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
In relation to the Notice of Motion filed 24 November 2021:
(1) Orders in accordance with paragraphs 1 to 8 of the consent orders signed by the legal representatives for the parties on 25 November 2021 as amended and as initialled by Dicker DCJ dated 25 November 2021 and placed with the papers.
(2) The trial listed for hearing for 25 November 2021 is vacated.
Note: The trial is vacated due to issues relating to the District Court's jurisdiction. The matter has been transferred to the Supreme Court.

Catchwords:
DISTRICT COURT – jurisdiction – declaratory and injunctive relief sought – accounts sought – whether court has jurisdiction to grant relief sought

Legislation Cited:
Civil Procedure Act2005 (NSW)
District Court Act 1973 (NSW)

Cases Cited:
Edwards v Gillespie [2020] NSWDC 475
Great Northern Developments Pty LtdvLane [2021] NSWCA 150
KolavovPitsikas [2003] NSWCA 59
MahommedvUnicomb [2017] NSWCA 65

Category: Consequential orders
Parties: Jenine Glenn (Plaintiff)
Noleen Kemp (Defendant)
Representation:
Counsel:
M Foran (Plaintiff)
K Ryder (Solicitor) (Defendant)
Solicitors:
Australian Law Partners (Plaintiff)
O’Loughlins Lawyers (Defendant)

File Number(s): 2020/00350135
Publication restriction: No

Judgment – ex tempore revised

Before the Court in this matter is an issue relating to the jurisdiction of the Court. The other issues have in substance been agreed between the parties. The matter was fixed for hearing today for one day. The plaintiff has sought leave, and will be granted leave, to discontinue the Statement of Claim proceedings.
That leaves the Cross-Claim between the parties which is described as a "counter-claim" and is in paragraphs 16 to 19 at the back of the Amended Defence filed 19 March 2021 (“the Cross-Claim”).
Mr Foran of counsel, who appears for the plaintiff, submits that there is a doubt as to the jurisdiction of the Court as to the Cross-Claim. He submits that the appropriate order to be made is for the Court to transfer the matter to the Supreme Court under s 144 of the Civil Procedure Act2005 (NSW). Mr Ryder, who appears for the defendant, is not in a position fully to respond to the authorities raised by Mr Foran but notes that s 144 refers to an obligation to transfer where the District Court “may” lack jurisdiction. The Cross-Claim is, of course, a separate proceedings and survives the discontinuance or dismissal of the main proceedings.
An analysis needs to be undertaken of paragraphs 16 to 19 of the Cross-Claim. There is in the proceedings an issue as to the ownership of a pedigree dog called “Dante”. I note that these proceedings have been hard fought and it is proposed that, if the matter is transferred, the Supreme Court will determine the ownership of the dog and related relief. Looking at paragraph 18 of the Cross-Claim,…

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 Glenn v Kemp

Details

AGLC: Glenn v Kemp [2021] NSWDC 656
Case: [2021] NSWDC 656
Decision Date: 25 November 2021

CaseChat Overview and Summary

The case of Glenn v Kemp was heard in the District Court of New South Wales. The dispute involved Glenn, the plaintiff, seeking declaratory and injunctive relief, as well as accounts from Kemp, the defendant. The core issue was whether the District Court had the jurisdiction to grant the relief sought by the plaintiff.

The central legal issue before the court was whether the District Court had the authority to hear and decide on the claims made by Glenn against Kemp, particularly in terms of providing the requested declaratory and injunctive relief, as well as the accounting. Glenn argued that the District Court had the necessary jurisdiction, whereas Kemp contended that the matter should be heard in a higher court due to the complexity and potential financial implications of the claims.

The court found that the District Court lacked the jurisdiction to hear the case as the value of the claims exceeded the monetary limit for which the District Court could provide a remedy. Consequently, the court ruled that the matter was beyond the scope of its authority and should be transferred to the Supreme Court, which has the requisite jurisdiction to deal with such cases. The trial that was scheduled for hearing on 25 November 2021 was subsequently vacated, and the matter was transferred to the Supreme Court of New South Wales.

Orders

Orders of the court

In relation to the Notice of Motion filed 24 November 2021:

(1) Orders in accordance with paragraphs 1 to 8 of the consent orders signed by the legal representatives for the parties on 25 November 2021 as amended and as initialled by Dicker DCJ dated 25 November 2021 and placed with the papers.

(2) The trial listed for hearing for 25 November 2021 is vacated.

Note: The trial is vacated due to issues relating to the District Court's jurisdiction. The matter has been transferred to the Supreme Court.

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:	Glenn v Kemp [2021] NSWDC 656
Hearing dates:	25 November 2021
Date of orders:	25 November 2021
Decision date:	25 November 2021
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	In relation to the Notice of Motion filed 24 November 2021: (1) Orders in accordance with paragraphs 1 to 8 of the consent orders signed by the legal representatives for the parties on 25 November 2021 as amended and as initialled by Dicker DCJ dated 25 November 2021 and placed with the papers. (2) The trial listed for hearing for 25 November 2021 is vacated. Note: The trial is vacated due to issues relating to the District Court's jurisdiction. The matter has been transferred to the Supreme Court.
Catchwords:	DISTRICT COURT – jurisdiction – declaratory and injunctive relief sought – accounts sought – whether court has jurisdiction to grant relief sought
Legislation Cited:	Civil Procedure Act2005 (NSW) District Court Act 1973 (NSW)
Cases Cited:	Edwards v Gillespie [2020] NSWDC 475 Great Northern Developments Pty LtdvLane [2021] NSWCA 150 KolavovPitsikas [2003] NSWCA 59 MahommedvUnicomb [2017] NSWCA 65
Category:	Consequential orders
Parties:	Jenine Glenn (Plaintiff) Noleen Kemp (Defendant)
Representation:	Counsel: M Foran (Plaintiff) K Ryder (Solicitor) (Defendant) Solicitors: Australian Law Partners (Plaintiff) O’Loughlins Lawyers (Defendant)
File Number(s):	2020/00350135
Publication restriction:	No