Huang v Drumm (No 4)

[2019] NSWCA 140

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Huang v Drumm (No 4) [2019] NSWCA 140

Hearing dates:

14 June 2019

Date of orders:

17 June 2019

Decision date:

17 June 2019

Before:

Bell P; Macfarlan JA; Payne JA

Decision:

(1) The white book filed by Ms Huang on 11 January 2019 constitute the appeal book.

 

(2) The substance of paragraphs 17 and 19 of Ms Huang’s draft amended notice of appeal filed with her application for leave to appeal constitute the notice of appeal. The grounds of the appeal are thus:

 

s.67 of CPA 2005 (NSW)

 

1 His Honour erred in exercising s.67 of the Civil Procedure Act 2005 (NSW) to stay the appellant’s claim; and.

 

Inherent Jurisdiction of the Supreme Court

 

2. His Honour erred in exercising his inherent powers to stay the appellant’s claim

 

(3) Appeal allowed.

 

(4) Set aside orders (a) and (b) made by Pembroke J on 12 October 2018.

 

(5) The parties to pay their own costs of the application for leave to appeal.

 (6) Ms Huang to pay Mr Drumm’s costs of the appeal from and including 6 May 2019.

Catchwords:

APPEALS – application for leave to appeal proceedings – stayed pursuant to inherent jurisdiction and s 67 of the Civil Procedure Act 2005 (NSW) as an abuse of process – whether any proper basis for the finding of abuse of process – whether proceedings properly stayed pursuant to s 17 of the Trans-Tasman Proceedings Act 2010 (Cth) – leave to appeal granted – orders not properly made – orders set aside

  CIVIL PROCEDURE – failure to file notice of appeal as ordered - application for leave to appeal treated as constituting notice of appeal

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)

Category:

Principal judgment

Parties:

Biru Huang (Appellant)
Bernard Joseph Drumm (Respondent)

Representation:

Counsel:
No appearance (Appellant)
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):

2016/00096823

HEADNOTE

[This headnote is not to be read as part of the judgment]

Orders were made in the Equity Division of the Supreme Court on 12 October 2018 on three bases:

“(a)   I order that this proceeding be stayed pursuant to the inherent jurisdiction of the Court; and

(b) I order that this proceeding be stayed pursuant to Section 67 of the Civil Procedure Act 2005 (NSW).

(c) I order that this proceeding be stayed pursuant to Section 17 of the Trans-Tasman Proceedings Act, 2010 (Cth).”

The only application made in that Court was an application under s 17 of the Trans-Tasman Proceedings Act for a stay. Section 17(1) provides:

“A defendant in a civil proceeding in an Australian court may apply to the court for an order staying the proceeding on the grounds that a New Zealand court is the…