Huang v Drumm (No 3)

[2019] NSWCA 117

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Huang v Drumm (No 3) [2019] NSWCA 117

Hearing dates:

20 May 2019

Date of orders:

20 May 2019

Decision date:

20 May 2019

Before:

Payne JA

Decision:

(1) Stay of proceedings refused.

 

(2) Ms Huang to file a notice of appeal in the form directed by the Court by 4pm on 27 May 2019.

 

(3) Ms Huang to file written submissions by 4pm on 27 May 2019.

 

(4) Mr Drumm to file written submissions by 4pm on 3 June 2019.

 

(5) Ms Huang to file written submissions in reply by 4pm on 10 June 2019.

 (6) The matter be listed for hearing at 2.15pm on 14 June 2019.

Catchwords:

REFERRALS – case management – matter listed for hearing

CIVIL PROCEDURE – Court of Appeal – stay of orders – stay refused – Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited (1986) 161 CLR 681; [1986] HCA 84 applied

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 67
Trans-Tasman Proceedings Act 2010 (NSW), s 17

Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 51.1(3)

Cases Cited:

Comandate Marine Corp v Pan Australia Shipping Pty Ltd [2006] HCATrans 353
Edelsten v Ward (No 2) (1988) 63 ALJR 346
Gerah Imports Pty Ltd v The Duke Group (in liq) (1994) 68 ALJR 196; [1994] HCA 3
Haydon v Chivell [1999] HCA 39
Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited (1986) 161 CLR 681; [1986] HCA 84
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 2) (1998) 72 ALJR 869; [1998] HCA 32
Rinehart v Welker (2012) 83 NSWLR 347; [2012] NSWCA 1

Category:

Procedural and other rulings

Parties:

Biru Huang (Applicant)
Bernard Joseph Drumm (Respondent)

Representation:

Counsel:
No appearance (Applicant)
D Elliott (Respondent)

File Number(s):

2018/00347621

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Equity

Date of Decision:

12 October 2018

Before:

Pembroke J

File Number(s):

2016/96823

Judgment

1. PAYNE JA: On 17 April 2019, this Court granted Ms Huang leave to appeal against orders made by Pembroke J limited to the following grounds:

“(a) whether there was any proper foundation for his Honour to make orders under the inherent jurisdiction and s 67 of the Civil Procedure Act staying the proceedings before him on the ground that they were an abuse of process; and

(b) whether, if his Honour’s abuse of process orders were well founded, there was any proper basis upon which he could have granted a stay under s 17 of the Trans-Tasman Proceedings Act in relation to proceedings which were ex hypothesei an abuse of process.”: [2019] NSWCA 77 at [10].

2. In what follows familiarity with that decision is assumed. Ms Huang was directed by this Court to file and serve within 14 days a notice of appeal limited to the issues identified in the grounds. By email exchange with the chambers of Macfarlan JA, Ms Huang was granted an…