Land Enviro Corp Pty Ltd & Ors v HTT Huntley Heritage Pty Ltd (in Its Own and as trustee of the Huntley Trust)

[2014] HCASL 146

LAND ENVIRO CORP PTY LTD & ORS

v

HTT HUNTLEY HERITAGE PTY LTD (IN ITS OWN AND AS TRUSTEE OF THE HUNTLEY TRUST) & ORS

[2014] HCASL 146
S58/2014

1. The applicants commenced proceedings claiming that they were misled into settling proceedings they had previously instituted against the respondents.  The representations which the applicants claimed were false included, relevantly, a representation in the course of settlement negotiations by the second respondent that funding was forthcoming for the payment of certain debts and for the development of land.  The applicants claimed that the representations had been made by the second respondent on behalf of all of the respondents, including the third and sixth respondents who, the applicants argued, were to be taken to have authorised the second respondent to act as their agent given their failure to participate in negotiations in which their interests were affected.

2. The Supreme Court of New South Wales (Stevenson J) dismissed the proceedings on the basis that the applicants were aware that there was no funding in place at the time the settlement agreement was concluded and made no complaint.  His Honour also found that, in the circumstances of the case, there was no evidential basis for the applicants' contention that the representations made by the second respondent concerning funding were made on behalf of the third and sixth respondents in his capacity as agent.  The applicants sought to appeal out of time to the Court of Appeal of the Supreme Court of New South Wales.  Allsop P dismissed the application for an extension of time principally in light of his assessment of the prospects of success.

3. The applicants appealed under s 46(4) of the Supreme Court Act 1970 (NSW), which permits the Court of Appeal to discharge or vary a judgment or order of a Judge of Appeal. The Court of Appeal, constituted by three judges, set aside the orders of Allsop P and extended time for the filing of the notice of appeal with respect to the first, second, fourth and fifth respondents. The Court (Basten JA; Beazley P and Leeming JA agreeing) dismissed the application with respect to the third and sixth respondents on the basis that nothing that had been submitted before it cast doubt on Stevenson J's findings with respect to the question of agency.

4. The applicants seek special leave to appeal to this Court against the Court of Appeal's decision not to grant an extension of time in relation to the third and sixth respondents. The applicants do not have legal representation. The application therefore falls to be dealt with under r 41.10 of the High Court Rules 2004.

5. The proceedings below involved questions of practice and procedure which were resolved by the application of well-settled principles.  There is no basis for doubting the correctness of the decision of the Court of Appeal.  The application is dismissed.

6. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

V.M. Bell
15 August 2014 S.J. Gageler