Kennedy v Noun

[2013] NSWCA 129

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Kennedy v Noun [2013] NSWCA 129

Hearing dates:

7 May 2013

Decision date:

07 May 2013

Before:

Basten JA at [1];
Macfarlan JA at [5]

Decision:

1. Leave to appeal granted.

2. Costs of the application for leave to appeal will be costs in the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - application for leave - interlocutory decision dismissing cross-claim - doubt as to correctness of approach - practical finality as to cause of action

Category:

Procedural and other rulings

Parties:

Alexander McIntyre Stewart Kennedy (Applicant)
Tony Hassan Noun (Respondent)

Representation:

Counsel:

C R Newlinds SC/S Lawrance (Applicant)
C Bevan (Respondent)
Solicitors:

Banki Haddock Fiora (Applicant)
Turner Freeman (Respondent)

File Number(s):

CA 2012/390646

 Decision under appeal 

Jurisdiction:

9111

Citation:

Noun v Pavey [2012] NSWSC 1644

Date of Decision:

2012-12-12 00:00:00

Before:

Gzell J

File Number(s):

SC 2012/93374

Judgment

1. BASTEN JA: This is an application for leave to appeal against the summary dismissal of a cross-claim by Gzell J on 12 December 2012.

1. The proceedings were commenced in the Equity Division on 23 March 2012 by the respondent on behalf of himself and another in respect of a range of causes of action against a number of defendants, including the present applicant. On 13 June 2012 the applicant filed a cross-claim seeking to recover against the respondent certain amounts of money, principally legal costs, which he said he had incurred as a result of certain conduct of the respondent. On 25 June 2012 the cross-defendant filed a motion seeking to have the cross-claim dismissed.

1. On 7 August 2012 Macready As J declined to dismiss the cross-claim and dismissed the motion. An appeal from that decision was heard by Gzell J, who allowed the appeal and dismissed the cross-claim. It is perhaps unfortunate that a second level of appeal is being invoked in relation to a cross-claim which on any view seems likely to involve a small area of dispute, compared with the discursive pleadings in the statement of claim.

1. Nevertheless, there is a real doubt as to whether the primary judge dealt with the claims strictly on the pleadings and whether he was correct to dismiss the cross-claim summarily. As the cross-claimant will lose any right of action he did have, by virtue of that decision, it is appropriate that he have leave to appeal against that decision. The Court grants leave to appeal. Costs of the application for leave to appeal will be costs in the appeal.

1. MACFARLAN JA: I encourage the parties to attempt to reach an accommodation because, as the presiding Judge said, it is unfortunate that there have been a number of layers of appeal. There will now be another and the costs incurred are likely to be disproportionate to the amount involved. I would encourage the parties to try to resolve their differences. This may involve the issue being litigated at trial.

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