Land Enviro Corp Pty Ltd v Hickie - [2014] NSWCA 363

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Land Enviro Corp Pty Ltd v Hickie [2014] NSWCA 363
Hearing dates: 17 October 2014
Decision date: 17 October 2014
Before: Leeming JA; Sackville AJA
Decision:
1. The summons seeking leave to appeal, filed 28 July 2014, and the notice of motion filed 17 July 2014, be dismissed.
2. The notice of appeal filed 17 July 2014, be dismissed as incompetent.
3. The applicants to pay the respondents' costs.
[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 to appeal from interlocutory orders - application for stay pending determination of application for special leave - application now moot and doomed to fail
Cases Cited: Hickie v Land Enviro Corp Pty Ltd [2014] NSWSC 472
In the matter of Amy Holdings Pty Ltd; In the matter of Land Enviro Corp Pty Ltd [2014] NSWSC 1176
Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2013] NSWCA 35
Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2014] NSWCA 34
Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd & Ors [2014] HCASL 146
Category: Interlocutory applications
Parties: Land Enviro Corp Pty Ltd (1st Applicant)
Mr Sam Zdrilic (2nd Applicant)
Ms Amy Adrilic (3rd Applicant)
Amy Holdings Pty Ltd (4th Applicant)
David Hickie (1st Respondent)
Vocifa Pty Ltd (2nd Respondent)
Representation: Counsel:
In person (2nd Applicant, and appearing for the 1st, 3rd and 4th Applicants)
F G Lever SC (1st and 2nd Respondents)
Solicitors:
Bartier Perry (1st and 2nd Respondents)

File Number(s): 2014/138849; 2014/223231
Decision under appeal

Citation:

Hickie v Land Enviro Corp Pty Ltd [2014] NSWSC 472

Date of Decision:

2014-04-29 00:00:00

Before:

Harrison J

File Number(s):

2013/00078308

Judgment

THE COURT: Before the Court are (a) a summons seeking leave to appeal from, and (b) a notice of motion seeking to vary, orders made by Harrison J, in the Common Law Division on 29 April 2014. In both cases, what is sought is the setting aside of his Honour's orders and putting in place a further stay pending the outcome of proceedings in the High Court and in the Court of Appeal (of which more will be said below). A notice of appeal has also been filed, presumably on the incorrect basis that leave was not required to appeal from the orders, which, as will be seen below, are plainly interlocutory.

The procedural history is complex. It is described (in more detail than is necessary for present purposes) in the reasons of the Court below: Hickie v Land Enviro Corp Pty Ltd [2014] NSWSC 472 at [3]-[14], and…

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.

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Details

Case: [2014] NSWCA 363
Decision Date: 17 October 2014

CaseChat Overview and Summary

Land Enviro Corp Pty Ltd and others (the applicants) sought leave to appeal from interlocutory orders made by the primary judge, and also sought a stay of those orders pending the determination of an application for special leave to appeal to the High Court. The proceedings were heard in the Court of Appeal of New South Wales by Leeming JA and Sackville AJA.

The central legal issue before the Court of Appeal was whether the applicants' application for leave to appeal and their application for a stay were still valid and capable of being determined, or whether they had become moot and were doomed to fail. This question arose in circumstances where the applicants had failed to comply with procedural requirements for the prosecution of their appeal.

The Court of Appeal reasoned that the applicants had not taken the necessary steps to bring their appeal before the Court, rendering the notice of appeal incompetent. Furthermore, the Court found that the application for leave to appeal was also incompetent due to the failure to comply with the rules of court. Consequently, the Court concluded that the applications were moot and could not succeed.

Accordingly, the Court of Appeal ordered that the summons seeking leave to appeal and the notice of motion be dismissed. The notice of appeal was also dismissed as incompetent, and the applicants were ordered to pay the respondents' costs.

Orders

Orders of the court

1. The summons seeking leave to appeal, filed 28 July 2014, and the notice of motion filed 17 July 2014, be dismissed.

2. The notice of appeal filed 17 July 2014, be dismissed as incompetent.

3. The applicants to pay the respondents' costs.

[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.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Land Enviro Corp Pty Ltd v Hickie [2014] NSWCA 363
Hearing dates:	17 October 2014
Decision date:	17 October 2014
Before:	Leeming JA; Sackville AJA
Decision:	1. The summons seeking leave to appeal, filed 28 July 2014, and the notice of motion filed 17 July 2014, be dismissed. 2. The notice of appeal filed 17 July 2014, be dismissed as incompetent. 3. The applicants to pay the respondents' costs. [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 to appeal from interlocutory orders - application for stay pending determination of application for special leave - application now moot and doomed to fail
Cases Cited:	Hickie v Land Enviro Corp Pty Ltd [2014] NSWSC 472 In the matter of Amy Holdings Pty Ltd; In the matter of Land Enviro Corp Pty Ltd [2014] NSWSC 1176 Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2013] NSWCA 35 Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2014] NSWCA 34 Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd & Ors [2014] HCASL 146
Category:	Interlocutory applications
Parties:	Land Enviro Corp Pty Ltd (1st Applicant) Mr Sam Zdrilic (2nd Applicant) Ms Amy Adrilic (3rd Applicant) Amy Holdings Pty Ltd (4th Applicant) David Hickie (1st Respondent) Vocifa Pty Ltd (2nd Respondent)
Representation:	Counsel: In person (2nd Applicant, and appearing for the 1st, 3rd and 4th Applicants) F G Lever SC (1st and 2nd Respondents) Solicitors: Bartier Perry (1st and 2nd Respondents)
File Number(s):	2014/138849; 2014/223231
Decision under appeal	Citation: Hickie v Land Enviro Corp Pty Ltd [2014] NSWSC 472 Date of Decision: 2014-04-29 00:00:00 Before: Harrison J File Number(s): 2013/00078308