Hickie v Land Enviro Corp Pty Ltd - [2014] NSWSC 472

Supreme Court

New South Wales

Medium Neutral Citation: Hickie v Land Enviro Corp Pty Ltd [2014] NSWSC 472
Hearing dates: 17 April 2014
Decision date: 29 April 2014
Before: Harrison J
Decision:
1. Dismiss the defendants' notice of motion filed 25 March 2014 with costs.
2. Order that the amount of $15,000 paid into Court on 28 May 2013 on behalf of the defendants be paid out to Bartier Perry, solicitors.
3. Order the defendants to pay the plaintiffs' costs of their motion filed 3 April 2014, limited to the costs of preparation and filing of the notice of motion and the preparation, swearing and filing of the affidavit of Philip James Brand dated 1 April 2014.

Catchwords: STAY - stay pending appeal - where plaintiffs entitled to fruits of costs judgment following success at trial and in the Court of Appeal - where defendants seek special leave to appeal to High Court - whether appeal has realistic or demonstrated prospects of success - where appeal patently without merit - no basis for stay demonstrated
Legislation Cited: Judiciary Act 1903
Legal Profession Act 2004
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005
Cases Cited: Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685
Carr trading as Forshaws Neill v Swart; Lawcover Pty Ltd v Swart [2007] NSWCA 135
Daebo International Shipping Co Ltd v The Ship Go Star (No 3) [2012] FCA 1475
Hickie v Land Enviro Corp Pty Ltd [2013] NSWSC 706
Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2012] NSWSC 382
Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2014] NSWCA 34
Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103
Category: Principal judgment
Parties: David Hickie (First Plaintiff)
Vocifa Pty Ltd (Second Plaintiff)
Land Enviro Corp Pty Ltd (Defendant)
Representation: Counsel:
F Lever SC (Plaintiffs)
Solicitors:
Bartier Perry (Plaintiffs)

File Number(s): 2013/00078308
Publication restriction: Nil

Judgment

HIS HONOUR: By notice of motion filed on 25 March 2014, Land Enviro Corp Pty Ltd, Sam Zdrilic, Amy Zdrilic and Amy Holdings Pty Ltd (the defendants) seek the following orders:

1. That a stay of the costs order in the Supreme Court of New South Wales proceedings under the file number 2013/0078308 be extended until 30 days after the High Court of Australia makes a determination in relation to the application for leave to appeal against order 4 of the judgment of the NSW Court of Appeal dated 4 March 2014, or if that application is successful, 30 days after the High Court's determination of the appeal.

2. In the alternative to order 1, that order 4 of the judgment of the NSW Court of Appeal dated 4 March 2014 be stayed until 30 days after the High Court determination of the application for leave to appeal, or if the application is successful, 30 days after the High Court's determination of the appeal against order 4 of the NSW Court of Appeal judgment dated 4 March…

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: [2014] NSWSC 472
Decision Date: 29 April 2014

CaseChat Overview and Summary

The matter of Hickie v Land Enviro Corp Pty Ltd was before the Court of Appeal, involving a dispute over the costs of legal proceedings. The plaintiffs, having succeeded in their claims at first instance and on appeal, sought to enforce their costs order against the defendants. The defendants then sought special leave to appeal to the High Court. The plaintiffs opposed the application for special leave and requested a stay of the costs order pending the outcome of the application for special leave. The appeal was heard in the Court of Appeal, which had to determine whether the defendants' application for special leave to appeal to the High Court had realistic or demonstrated prospects of success.

The court considered the criteria for granting a stay pending appeal, which required an assessment of the merits of the appeal. The plaintiffs argued that the appeal was patently without merit and had no basis for a stay. The court examined the grounds of appeal and found them to be without substance, lacking any plausible legal argument that could succeed at the High Court. The court concluded that the defendants' application for special leave to appeal was patently without merit and did not have realistic or demonstrated prospects of success.

In light of the findings, the Court of Appeal ruled that there was no basis for a stay of the costs order. The plaintiffs were entitled to the fruits of their costs judgment following their success at trial and in the Court of Appeal. The appeal was dismissed, and the plaintiffs were granted the enforcement of their costs order against the defendants. The Court of Appeal emphasised the importance of preventing unnecessary delays and ensuring that successful litigants receive the benefits of their legal victories without undue hindrance.

Orders