Hurst-Meyers v Hoy

Case [2022] ACTCA 36


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Hurst-Meyers v Hoy

Citation:

[2022] ACTCA 36

Hearing Date:

6 July 2022

DecisionDate:

14 July 2022

Before:

Kennett J

Decision:

Application in Proceeding filed on 22 June 2022 is dismissed. Costs of the Application are reserved.

Catchwords:

APPEAL – APPLICATION IN PROCEEDING – Application to adduce further evidence on appeal – whether proposed further evidence was reasonably available to be led at the time of the hearing – whether proposed further evidence would have made a difference in terms of the primary decision

Legislation Cited:

Evidence Act 2011 (ACT) ss 38, 131

Federal Court of Australia Act 1976 (Cth) s 27

Supreme Court Act 1933 (ACT) ss 37J, 37N

Cases Cited:

August v Commissioner of Taxation [2013] FCAFC 85

Coulton v Holcombe (1986) 162 CLR 1
Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 453
Head v Evans [2020] ACTCA 26
Hillier v The Queen [2008] ACTCA 3; 1 ACTLR 235
Hoy v Hurst-Meyers (No 2) [2022] ACTSC 58
Jovanovic v R [2015] ACTCA 29
Nouri v Australian Capital Territory [2020] ACTCA 1
Orr v Holmes (1948) 76 CLR 632
Ryan v Bunnings Group Limited (No 3) [2022] ACTCA 29

TS v DT [2020] ACTCA 43

Parties:

Ralph George Noel Nancy Hurst-Meyers (First Appellant)

RHM Industries Pty Ltd (Second Appellant)

Gavin Robert Hoy (Respondent)

Representation:

Counsel

Self-represented (Appellants)

Elringtons Lawyers (Respondent)

Solicitors

Self-represented (Appellants)

M Evelyn (Respondent)

File Number:

ACTCA 20 of 2022

Decision under appeal: 

Court/Tribunal:             Supreme Court of the ACT

Before:  Elkaim J

Date of Decision:          30 March 2022

Case Title:  Hoy v Hurst-Meyers (No 2)

Citation: [2022] ACTSC 58

KENNETT J:

Introduction

  1. The first appellant (Mr Hurst-Meyers) is the sole shareholder and director of the second appellant. For the sake of brevity I refer to Mr Hurst-Meyers as if he were the sole appellant and the sole defendant in the proceedings below. By an Application in Proceeding filed on 22 June 2022, he has sought leave to adduce further evidence in his appeal. I am dealing with this application as a single judge exercising the jurisdiction of the Court of Appeal pursuant to s 37J of the Supreme Court Act 1933 (ACT).

The proceeding below

  1. The respondent to the appeal (Mr Hoy) claimed an amount of $200,000 from Mr Hurst-Meyers. He filed his Originating Claim on 31 July 2019.

  1. Mr Hoy relied on a written agreement, signed by him and Mr Hurst-Meyers and dated 18 August 2016, described as a partnership agreement and apparently intended to facilitate property development activities that they proposed to undertake together (the partnership agreement). The partnership agreement provided for Mr Hoy to make a contribution of $200,000, and he made three funds transfers adding up to that amount to Mr Hurst-Meyers in the days following the execution of the agreement. The partnership agreement also contained what the parties referred to as a “parachute clause”, which permitted Mr Hoy to leave the partnership at a…

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AGLC
Hurst-Meyers v Hoy [2022] ACTCA 36
Case
[2022] ACTCA 36
Decision Date

CaseChat Overview and Summary

Hurst-Meyers (the applicant) sought to adduce further evidence on appeal in proceedings against Hoy (the respondent) before Kennett J. The dispute concerned an application to introduce evidence that was not presented at the original hearing.

The central legal issue before the court was whether the proposed further evidence was reasonably available to the applicant at the time of the original hearing, and if so, whether that evidence would have materially altered the outcome of the primary decision.

Kennett J dismissed the application, finding that the applicant had not demonstrated that the evidence was unavailable at the time of the original hearing, nor that it would have made a difference to the primary decision. The court therefore refused to admit the further evidence on appeal. The costs of the application were reserved.

Orders

Orders of the court

Application in Proceeding filed on 22 June 2022 is dismissed. Costs of the Application are reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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