Heperu Pty Limited v Belle (No 3)

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Heperu Pty Limited v Belle (No 3) [2010] NSWCA 339

FILE NUMBER(S):
40107/08

HEARING DATE(S):
On the papers

JUDGMENT DATE:
9 December 2010

PARTIES:
Heperu Pty Limited (First Appellant)
Kirisi Holdings Pty Limited (Second Appellant)
Patrice Belle (formerly Patrice Cincotta) (Respondent)

JUDGMENT OF:
Allsop P Campbell JA Handley AJA

LOWER COURT JURISDICTION:
Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):
6165/03

LOWER COURT JUDICIAL OFFICER:
Palmer J

LOWER COURT DATE OF DECISION:
12 December 2007

LOWER COURT MEDIUM NEUTRAL CITATION:
Heperu Pty Ltd & Ors v Morgan Brooks Pty Ltd & Ors (No 2) [2007] NSWSC 1438

COUNSEL:
G K Burton SC, C L Cochrane (Appellants)
J S Van Aalst (Respondent)

SOLICITORS:
Thomas Henry Bray, Sydney (Appellants)
Hardings Lawyers, Sydney (Respondent)

CATCHWORDS:

LEGISLATION CITED:

CATEGORY:
Procedural and other rulings

CASES CITED:

TEXTS CITED:

DECISION:
The respondent pay 25% of the appellants' costs of the appeal.
[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.]

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40107/08
ALLSOP P
CAMPBELL JA
HANDLEY AJA
Thursday 9 December 2010

HEPERU PTY LTD v BELLE (No 3)

Judgment

ALLSOP P: On 12 February 2010 orders were made disposing of the appeal other than costs: Heperu Pty Ltd v Belle (No 2) [2010] NSWCA 13.
As to costs I said in [11] of my judgment the following:
“The appellants have had a measure of success, but they lost almost all grounds of appeal. Subject to the parties leaving an opportunity to put submissions on costs, I would order that the respondent pay 25% of the appellants’ costs of the appeal.”
The Court provided the parties with fourteen days to file written submissions. Neither side desired to make submissions contrary to the proposed order. Unfortunately, the making of the order (which strictly is not by consent) was overlooked by me. In the circumstances the order of the Court should be that the respondent pay 25% of the appellants’ costs of the appeal.
CAMPBELL JA: I agree with Allsop P.
HANDLEY AJA: I agree with Allsop P.
**********

LAST UPDATED:
9 December 2010

CaseChat Overview and Summary

Heperu Pty Limited (the appellant) appealed to the Court of Appeal of New South Wales against orders made by the primary judge in proceedings concerning a dispute between Heperu Pty Limited and Belle (the respondent). The nature of the underlying dispute is not detailed in the provided text.

The central legal issue before the Court of Appeal was whether the primary judge had erred in setting aside a default judgment that had been entered against the respondent. This involved considering the principles governing the setting aside of default judgments, particularly in light of the Uniform Civil Procedure Rules 2005.

The Court of Appeal's reasoning and the legal principles applied are not fully elaborated in the provided text. However, the outcome indicates that the appeal was not entirely successful, as the respondent was ordered to pay 25% of the appellant's costs of the appeal. This suggests that while the appeal may have succeeded in some aspects, the respondent also achieved some measure of success, or the court considered it appropriate to apportion costs in this manner.

Orders of the court

The respondent pay 25% of the appellants' costs of the appeal.

[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.]

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established