Huang v Drumm - [2017] NSWSC 949

Supreme Court

New South Wales

Medium Neutral Citation: Huang v Drumm [2017] NSWSC 949
Hearing dates: 14 July 2017
Decision date: 14 July 2017
Jurisdiction: Common Law
Before: Adamson J
Decision:
1. Refuse leave to the plaintiff to appeal against the decision of Barnett LCM dismissing the plaintiff’s application for leave for a subpoena to be issued to Mr Kumar.
2. Order the plaintiff to pay the defendant’s costs of the proceedings in this Court.

Catchwords: PRACTICE AND PROCEDURE – application for appeal against interlocutory decision of the Local Court – whether leave should be granted to appeal against magistrate’s decision to refuse application for leave to issue subpoena – HELD – leave refused – no issue of principle – no injustice shown – no error identified in magistrate’s exercise of discretion to refuse issue of subpoena on sixth day of hearing
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58
Evidence Act 1995 (NSW), s 103
Local Court Act 2007 (NSW), s 40
Uniform Civil Procedure Rules 2005 (NSW), r 7.3
Cases Cited: Gibson v Drumm [2016] NSWCA 206
Hession v Century 21 South Pacific Ltd (in liq) (1992) 28 NSWLR 120
Liristis v Gadelrabb [2009] NSWSC 441
Toppro Pty Ltd v Yoo [2016] NSWCA 119
Category: Principal judgment
Parties: Biru Huang (Plaintiff)
Bernard Joseph Drumm as trustee for the Corporate Consulting Services Trust (Defendant)
Representation:
Counsel:
Plaintiff in person
D Elliot (Defendant)
Solicitors:
Lander & Rogers Lawyers (Defendant)

File Number(s): 2017/176611
Decision under appeal

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

23 May 2017

Before:

Barnett LCM

File Number(s):

2015/22577

Judgment

Introduction

On 23 January 2015 Biru Huang (the plaintiff) commenced proceedings in the Local Court (the Local Court Proceedings) against Bernard Drumm (the defendant). She claims reimbursement of monies alleged to have been paid by her for costs and disbursements in Supreme Court Proceedings 2010/425027 (the Original Proceedings). She also claims fees said to be payable to her for documents which she stored. The Local Court Proceedings have not yet been finally heard and determined.
The Original Proceedings concerned a claim by the Corporate Consulting Services Trust, the first plaintiff, and Mr Drumm, the second plaintiff, against Dr McIntosh and Ms Merrick. The Original Proceedings were settled by Mr Drumm on 26 May 2015, as a result of which he was removed as a party. The balance of the proceedings was dismissed on 4 March 2016 by Young AJ. Ms Huang alleges that she paid the legal fees for the legal representatives who appeared for the plaintiffs in the Original Proceedings.
On 23 May 2017, in the Local Court Proceedings, the plaintiff sought leave for a subpoena to be issued to Mr Kumar, a barrister who is said to have been engaged on behalf of the plaintiffs in the Original Proceedings to perform certain work associated with those proceedings. Magistrate Barnett SC refused the plaintiff’s application.
By summons filed on 13 June 2017, the plaintiff seeks this Court’s…

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 Huang v Drumm

Details

AGLC: Huang v Drumm [2017] NSWSC 949
Case: [2017] NSWSC 949
Decision Date: 14 July 2017

CaseChat Overview and Summary

The applicant, Huang, sought to appeal against the Local Court's refusal to grant leave to issue a subpoena. The case involved a dispute that was being heard in the Local Court. The respondent, Drumm, opposed the application for leave to appeal, arguing that the matter was not one of principle and that no injustice had been shown by the magistrate's refusal. The court was required to determine whether leave to appeal should be granted, focusing on whether there was an issue of principle or an injustice that warranted an appeal, and whether any error was made by the magistrate in exercising their discretion.

The court examined the application and found that the matter was not one of principle that warranted an appeal. The court noted that the magistrate had exercised their discretion to refuse the issue of the subpoena, and that this decision was not shown to be erroneous. The applicant had not demonstrated any injustice that would warrant an appeal, and no issue of principle was identified that would require the court to intervene. The court held that the magistrate's decision was within their discretion and that there was no error in their exercise of that discretion.

Accordingly, the court refused the applicant leave to appeal. The court found that there was no issue of principle that warranted an appeal, and that no injustice had been shown. The court held that the magistrate's decision to refuse the issue of the subpoena was not erroneous, and that the applicant had not demonstrated any grounds for an appeal. The court's decision was based on the specific circumstances of the case, and did not set a precedent for future cases. The court's reasoning was grounded in the principles of judicial discretion and the balance of the parties' rights in the proceedings.

There were no orders made by the court. The court's decision was limited to refusing the applicant leave to appeal, and did not provide any further relief or orders. The applicant was not granted leave to appeal the Local Court's decision, and the matter remained before the Local Court. The court's decision was final and binding, and could not be appealed further.

Orders