Hampson v Maleski - [2014] NSWCA 155

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hampson v Maleski [2014] NSWCA 155
Hearing dates: On the papers
Decision date: 19 May 2014
Before: Beazley P
Decision:
1. Remit the following proceedings to the Common Law Division of the Supreme Court:
Donald Hampson v Nadine Maleski CA 2014/51000.
[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: PROCEDURE - Appeal from a decision of Associate Judge - Interlocutory decision - Uniform Civil Procedure Rules, r 49.4 - Where proceedings wrongly instituted in Court of Appeal - Remitter to Division of the Supreme Court - Supreme Court Act 1970, s 51(2)
Legislation Cited: Civil Procedure Act 2005
Supreme Court Act 1970
Supreme Court Rules 1970
Uniform Civil Procedure Rules 2005
Cases Cited: Abouloff v Oppenheimer (1882) 10 QBD 295
Keele v Findlay (1990) 21 NSWLR 444
Quarter Enterprises Pty Ltd v Allardyce Lumber Company Ltd [2014] NSWCA 3
Secure Funding Pty Ltd v Stark; Secure Funding Pty Ltd v Conway [2014] NSWCA 151
Yoong v Song [2000] NSWSC 1147
Category: Interlocutory applications
Parties: Donald Hampson (Applicant)
Nadine Maleski (Respondent)
Representation: Solicitors:
Loke Bushby International (Applicant)
Bennett & Philp Lawyers (Brisbane) (Respondent)

File Number(s): CA 2014/51000
Decision under appeal

Jurisdiction:

9111

Citation:

Maleski v Hampson [2013] NSWSC 1794

Date of Decision:

2013-12-06 00:00:00

Before:

Harrison AsJ

File Number(s):

2013/82455

Judgment

HER HONOUR: By summons for leave to appeal filed 18 February 2014, the applicant sought leave to appeal from the orders of Harrison AsJ made on 5 December 2013 striking out his defence to the claim brought by the respondent to enforce the default judgment given in her favour by the Superior Court of New Jersey on 14 March 2011. The application determined by her Honour was brought by way of an amended notice of motion for the striking out of the defence pursuant to the Uniform Civil Procedure Rules 2005 (UCPR), r 14.28 and/or the Civil Procedure Act 2005, s 61(3)(c), and an order pursuant to UCPR, Pt 16 and/or the Civil Procedure Act, s 61(3)(c) that judgment be entered against the defendant in accordance with the relief claimed in the statement of claim.

Harrison AsJ, having determined that the defence should be struck out, further determined that the respondent's claim for interest should be allowed on the amount claimed. Her Honour, at [52], stated her intention to enter judgment for the respondent on her claim, once the parties had checked her Honour's calculations of the judgment sum plus interest. An examination of the court records indicate that judgment was subsequently entered for the respondent in the sum of $140,519.52 and the defendant was ordered…

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 Hampson v Maleski

Details

AGLC: Hampson v Maleski [2014] NSWCA 155
Case: [2014] NSWCA 155
Decision Date: 19 May 2014

CaseChat Overview and Summary

The proceedings involved an appeal by Donald Hampson against an interlocutory decision made by an Associate Judge in a matter against Nadine Maleski. The appeal was brought before the Court of Appeal.

The primary legal issue before the Court of Appeal was whether the proceedings had been wrongly instituted in that court, and if so, what the appropriate course of action should be, particularly in light of rule 49.4 of the Uniform Civil Procedure Rules and section 51(2) of the Supreme Court Act 1970.

The Court of Appeal determined that the proceedings had indeed been wrongly instituted in the Court of Appeal. Applying the relevant legislative provisions, the Court ordered that the proceedings be remitted to the appropriate division of the Supreme Court.

Accordingly, the Court ordered the remitter of the proceedings, Donald Hampson v Nadine Maleski CA 2014/51000, to the Common Law Division of the Supreme Court.

Orders

Orders of the court

1. Remit the following proceedings to the Common Law Division of the Supreme Court:

Donald Hampson v Nadine Maleski CA 2014/51000.

[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

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:	Hampson v Maleski [2014] NSWCA 155
Hearing dates:	On the papers
Decision date:	19 May 2014
Before:	Beazley P
Decision:	1. Remit the following proceedings to the Common Law Division of the Supreme Court: Donald Hampson v Nadine Maleski CA 2014/51000. [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:	PROCEDURE - Appeal from a decision of Associate Judge - Interlocutory decision - Uniform Civil Procedure Rules, r 49.4 - Where proceedings wrongly instituted in Court of Appeal - Remitter to Division of the Supreme Court - Supreme Court Act 1970, s 51(2)
Legislation Cited:	Civil Procedure Act 2005 Supreme Court Act 1970 Supreme Court Rules 1970 Uniform Civil Procedure Rules 2005
Cases Cited:	Abouloff v Oppenheimer (1882) 10 QBD 295 Keele v Findlay (1990) 21 NSWLR 444 Quarter Enterprises Pty Ltd v Allardyce Lumber Company Ltd [2014] NSWCA 3 Secure Funding Pty Ltd v Stark; Secure Funding Pty Ltd v Conway [2014] NSWCA 151 Yoong v Song [2000] NSWSC 1147
Category:	Interlocutory applications
Parties:	Donald Hampson (Applicant) Nadine Maleski (Respondent)
Representation:	Solicitors: Loke Bushby International (Applicant) Bennett & Philp Lawyers (Brisbane) (Respondent)
File Number(s):	CA 2014/51000
Decision under appeal	Jurisdiction: 9111 Citation: Maleski v Hampson [2013] NSWSC 1794 Date of Decision: 2013-12-06 00:00:00 Before: Harrison AsJ File Number(s): 2013/82455