Hilton v Berkemeier - [2014] NSWCA 464

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hilton v Berkemeier [2014] NSWCA 464
Hearing dates: 5/12/2014
Decision date: 05 December 2014
Before: Emmett JA at [1];
Gleeson JA at [22]
Decision:
(1) The application for leave to appeal be dismissed.
(2) The applicant pay the respondent's costs.
[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: APPEAL - application for leave to appeal - whether the primary judge was correct to find that the powers under rr 36.15 and 36.16 were enlivened so as to permit the setting aside of two earlier sets of orders - whether the application should be adjourned to allow the joinder of necessary parties
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 12.5, 36.15, 36.16
Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333
Hilton v Gidley [2009] NSWSC 383
Category: Principal judgment
Parties: Norman Anthony Hilton (Applicant)
Cynthia Frances Berkemeier (Respondent)
Representation: Counsel:
J Svelha (Applicant)
K Morgan with Z Hillman (Respondent)
Solicitors:
Pure Legal (Applicant)
O'Neill Partners (Respondent)

File Number(s): 2014/217127
Publication restriction: Nil
Decision under appeal

Citation:

Hilton v Gidley [2014] NSWSC 874

Date of Decision:

2014-07-03 00:00:00

Before:

Harrison J

File Number(s):

2008/284408

Judgment

EMMETT JA: By summons filed on 2 October 2014, Mr Norman Hilton has applied for leave to appeal from orders made by Harrison J on 3 July 2014. On that day, Harrison J set aside orders made by Hislop J on 22 May 2009 and by Patten AJ on 5 August 2009. In order to put Harrison J's orders into context, it is necessary to say something very briefly about the proceedings.

Background to the Proceedings

By deed of loan dated 6 December 2007, Mr Hilton advanced the sum of US$350,000, together with the sum of AUD$20,000, to Ms Isobelle Gidley and Mr Richard Shears as borrowers (the Borrowers). The loan was guaranteed by Mr Daniel Bickel and Ms Cynthia Berkemeier (together, the Guarantors). Ms Berkemeier is the respondent to the present application.

The Guarantors provided security by way of an unregistered mortgage over a property in Douglas Street, Stanmore, which was owned by them as tenants in common (the Stanmore Property). The Borrowers defaulted. Mr Hilton then commenced proceedings against the Borrowers and the Guarantors by a statement of claim filed on 8 May 2008. An amended statement of claim was filed on 4 June 2008.

Mr Paul Fordyce, a solicitor who had prepared the loan agreements on the instructions of the Borrowers, mistakenly filed a submitting appearance in Mr Hilton's proceedings on behalf of all four defendants, being the Borrowers and the Guarantors. On…

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 Hilton v Berkemeier

Details

AGLC: Hilton v Berkemeier [2014] NSWCA 464
Case: [2014] NSWCA 464
Decision Date: 05 December 2014

CaseChat Overview and Summary

Hilton (applicant) sought leave to appeal against orders made by a primary judge in the Supreme Court of New South Wales. The dispute concerned the primary judge's decision to set aside two earlier sets of orders, and the applicant's subsequent application to adjourn proceedings to allow for the joinder of necessary parties.

The central legal issues before the Court of Appeal were whether the primary judge had correctly determined that the powers conferred by rules 36.15 and 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) were enlivened, thereby permitting the setting aside of the earlier orders. A further issue was whether the application for adjournment to join necessary parties should have been granted.

The Court of Appeal dismissed the application for leave to appeal. While the specific reasoning of the primary judge regarding the application of rules 36.15 and 36.16 is not detailed in the provided text, the outcome indicates that the Court of Appeal found no error in the primary judge's determination that these rules permitted the setting aside of the earlier orders. The refusal of leave to appeal suggests that the Court of Appeal was not persuaded that the primary judge had erred in law or fact in exercising their discretion under these rules, nor that the adjournment application was wrongly refused.

Consequently, the application for leave to appeal was dismissed, and the applicant was ordered to pay the respondent's costs.

Orders

Orders of the court

(1) The application for leave to appeal be dismissed.

(2) The applicant pay the respondent's costs.

[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:	Hilton v Berkemeier [2014] NSWCA 464
Hearing dates:	5/12/2014
Decision date:	05 December 2014
Before:	Emmett JA at [1]; Gleeson JA at [22]
Decision:	(1) The application for leave to appeal be dismissed. (2) The applicant pay the respondent's costs. [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:	APPEAL - application for leave to appeal - whether the primary judge was correct to find that the powers under rr 36.15 and 36.16 were enlivened so as to permit the setting aside of two earlier sets of orders - whether the application should be adjourned to allow the joinder of necessary parties
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), rr 12.5, 36.15, 36.16
Cases Cited:	Calderbank v Calderbank [1975] 3 All ER 333 Hilton v Gidley [2009] NSWSC 383
Category:	Principal judgment
Parties:	Norman Anthony Hilton (Applicant) Cynthia Frances Berkemeier (Respondent)
Representation:	Counsel: J Svelha (Applicant) K Morgan with Z Hillman (Respondent) Solicitors: Pure Legal (Applicant) O'Neill Partners (Respondent)
File Number(s):	2014/217127
Publication restriction:	Nil
Decision under appeal	Citation: Hilton v Gidley [2014] NSWSC 874 Date of Decision: 2014-07-03 00:00:00 Before: Harrison J File Number(s): 2008/284408