Hickie v Land Enviro Corp Pty Ltd - [2013] NSWSC 706

Supreme Court

New South Wales

Medium Neutral Citation: Hickie v Land Enviro Corp Pty Ltd [2013] NSWSC 706
Hearing dates: 6, 10 May 2013, 3 June 2013
Decision date: 06 June 2013
Before: McCallum J
Decision:
Application for stay of costs judgment granted upon payment into court of security for costs in the sum of $15,000

Catchwords: PRACTICE & PROCEDURE - application to stay enforcement of judgment entered upon filing of certificates of costs assessment - where application to extend time to appeal already refused by a judge of appeal - principles to be applied in determining whether to grant a stay
Legislation Cited: Civil Procedure Act 1995
Supreme Court Act 1970
Supreme Court Rules
Cases Cited: Alexander v Cambridge Credit Corp Ltd (1985) 10 ACLR 42; (1985) 2 NSWLR 685
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 [2012] NSWSC 446
Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2013] NSWCA 35
Category: Interlocutory applications
Parties: David Hickie (plaintiff)
Vocifa Pty Ltd (second plaintiff)
Land & Enviro Corp Pty Ltd (first defendant)
S Zdrilic (second defendant)
A Zdrilic (third defendant)
Representation: Counsel:
F Lever SC, P Brand (plaintiff)
(second defendant self represented)
Solicitors:
Bartier Perry (plaintiff)

File Number(s): 2013/078308
Publication restriction: None

Judgment

HER HONOUR: Land Enviro Corp Pty Limited and three other parties brought proceedings in the Equity Division of this Court arising out of a dispute concerning the development of a disused coal mine on the South Coast of New South Wales. In those proceedings, the plaintiffs sought to have agreements entered into in respect of the development set aside. They also sought to have set aside orders made by consent dismissing earlier proceedings brought in 2001.

Mr David Hickie was the third defendant to those proceedings and a director of the sixth defendant, Vocifa Pty Limited. The proceedings were heard by Stevenson J during February and March 2012. On 20 April 2012, his Honour dismissed the plaintiffs' claims: Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2012] NSWSC 382. His Honour dealt with costs in a separate judgment given on 7 May 2012: Land Envirocorp Pty Ltd v HTT Huntley Heritage Pty Ltd [2012] NSWSC 446. As to Mr Hickie and Vocifa, his Honour ordered the plaintiffs to pay their costs on the indemnity basis from 2 September 2011.

The plaintiffs sought to appeal against the decisions of Stevenson J but did not bring their appeal within time. A notice of intention to appeal was filed on 18 May 2012. However, no notice of appeal was filed within the time allowed under the rules. The last day for filing a notice of appeal was 27 July 2012, the order dismissing the claim having been made on 27 April 2012. A notice of appeal was filed (irregularly) on 8 November 2012 together with a notice of motion seeking an extension of…

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: [2013] NSWSC 706
Decision Date: 06 June 2013

CaseChat Overview and Summary

The case before the court involved Hickie, the applicant, who sought a stay of enforcement of a judgment entered upon filing of certificates of costs assessment against Land Enviro Corp Pty Ltd, the defendant. The matter was heard in the Supreme Court of New South Wales, where the applicant sought to appeal against the decision of the judge of the District Court. The central issue before the court was whether the applicant was entitled to a stay of enforcement of the judgment pending the outcome of an appeal, given that an application to extend time to appeal had already been refused by a judge of appeal.

The court considered the principles to be applied in determining whether to grant a stay of enforcement of a judgment. The applicant needed to demonstrate that they had a substantial question of law to be determined on the appeal and that the balance of convenience favoured a stay. The court noted that the applicant had previously been refused an extension of time to appeal, which was a relevant factor in the decision-making process. The court held that the applicant had not sufficiently demonstrated that the balance of convenience favoured a stay of enforcement, given the significant costs already incurred by the defendant and the likelihood that the appeal would be unsuccessful.

The court ultimately dismissed the application for a stay of enforcement of the judgment. The court found that the applicant had not established a substantial question of law or demonstrated that the balance of convenience favoured a stay. The court further held that the refusal of the application to extend time to appeal was a relevant consideration in the decision-making process. As such, the applicant was not entitled to a stay of enforcement of the judgment pending the outcome of the appeal. The court's decision was final and binding on the parties, and no further appeal was possible in relation to the stay of enforcement.

Orders