Land Enviro Corp Pty Ltd (In Liq) v HTT Huntley Heritage Pty Ltd (No 3)

Case •

[2018] NSWCA 3

•

01 February 2018

No judgment structure available for this case.

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Land Enviro Corp Pty Ltd (In Liq) v HTT Huntley Heritage Pty Ltd (No 3) [2018] NSWCA 3
Hearing dates: On the papers
Decision date: 01 February 2018
Before: Bathurst CJ; Meagher JA; Emmett AJA
Decision:

1.   Order that the orders made on 15 December 2017 be rescinded.
2.   Order that the Notice of motion filed on 5 September 2017 be dismissed.
3.   Order the applicant to pay the costs of the respondents of the motion.

Catchwords: CIVIL PROCEDURE – Notice of motion to set aside or vary a judgment or order
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 36.16
Cases Cited: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6
Land Enviro Corp Pty Ltd (In Liq) v HTT Huntley Heritage Pty Ltd [2017] NSWCA 207
Category:Consequential orders (other than Costs)
Parties: Land Enviro Corp Pty Ltd (In Liquidation) (Applicant)
HTT Huntley Heritage Pty Ltd, Robert Michael Renshall and Devubo Pty Ltd (Respondents)
Representation:

Counsel:
S Zdrilic (Applicant)
AC Harding (Respondents)

  Solicitors:
K&L Gates (Respondents)
File Number(s): 2012/156726
 Decision under appeal 
Court or tribunal:
Court of Appeal
Date of Decision:
22 August 2017
Before:
Bathurst CJ; Meagher JA; Emmett AJA
File Number(s):
2012/156726

Judgment

  1. THE COURT: On 15 December 2017, for reasons published on that day[1] , the Court ordered that a Notice of Motion filed on 5 September 2017 (the Recall Application) be dismissed with costs. By the Recall Application, the applicant sought an order that the orders of the Court made on 22 August 2017 be recalled and be set aside to enable further oral hearing on one of the questions disposed of by the orders of 22 August 2017. The orders of 22 August 2017 concerned the dismissal by the Registrar in the circumstances described in the Court’s reasons of 22 August 2017[2] of an appeal to this Court by the applicant on the Recall Application (the Original Appeal).

    1. Land Enviro Corp Pty Ltd (In Liq) v HTT Huntley Heritage Pty Ltd (No 2) [2017] NSWCA 322

    2. Land Enviro Corp Pty Ltd (In Liq) v HTT Huntley Heritage Pty Ltd [2017] NSWCA 207

  2. By reason of an administrative oversight, the applicant was not notified of the day on which the reasons were to be published and did not become aware of the orders until sometime thereafter. Accordingly, the parties were informed on 21 December 2017 that the orders made on 15 December 2017 without notification would be rescinded and that new orders in the same terms would be made at the beginning of the new law term. In the meantime, however, the Court received a further communication from the applicant in the form of a letter dated 22 January 2018, by which the applicant seeks to re-agitate the matters raised and argued in support of the Recall Application. The terms of the letter of 22 January 2018 are somewhat intemperate and seek once more to re-agitate the question of whether or not the Original Appeal has good prospects of success.

  3. In the circumstances, the Court does not propose to have regard to the substance of the letter of 22 January 2018. The appropriate course is that foreshadowed in the communication of 21 December 2017. That will afford to the applicant, if so advised, the opportunity to seek leave to appeal to the High Court of Australia from the orders originally made on 15 December 2017. The orders of the Court will therefore be as follows:

1.   Order that the orders made on 15 December 2017 be rescinded.

2.   Order that the notice of motion filed on 5 September 2017 be dismissed.

3.   Order the applicant to pay the costs of the respondents of the motion.

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Endnotes

Decision last updated: 13 February 2018

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