Hurst-Meyers v Hoy - [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

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

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.

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…

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 Hurst-Meyers v Hoy

Details

AGLC: Hurst-Meyers v Hoy [2022] ACTCA 36
Case: [2022] ACTCA 36
Decision Date: 14 July 2022

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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