Lawrence v Gunner - [2016] NSWCA 216

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Lawrence v Gunner [2016] NSWCA 216
Hearing dates: 18 August 2016
Decision date: 18 August 2016
Before: Gleeson JA
Decision:
(1)   Appeal allowed.
(2)   Set aside the judgment and orders of Stevenson J of 16 July 2015 and of 21 August 2015 (with the exception of orders 6, 8, 9 and 10 made 21 August 2015).
(3)   Order that there be no order as to the costs of the proceedings No. SC 2012/277403 in the court below nor of this appeal.
(4)   Otherwise the Further Amended Statement of Claim and Cross Claim stand dismissed.
(5)   Notations
A.   These orders reflect the parties’ compromise of these proceedings following successful Alternative Dispute Resolution.
B. These orders including the Notations are without prejudice to such claims under s 99 of the Civil Procedure Act 2005 (NSW) as the parties may be advised to make, including any such claims which may be made against 3rd parties.

Catchwords: PRODEDURE - Judgments and orders – amending, varying and setting aside – consent orders
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 99, 100
Supreme Court Act 1970 (NSW) s 46
Cases Cited: Re Felicity; FM v Secretary, Department of Family and Community Services (No 4) [2015] NSWCA 19
Lawrence v Gunner; Gunner v Lawrence [2015] NSWSC 944
Lawrence v Gunner; Gunner v Lawrence [2015] NSWSC 1229
Category: Procedural and other rulings
Parties: Wayne Lawrence (First Appellant)
Valerie Lawrence (Second Appellant)
Frances Beatrice Gunner (Respondent)
Representation:
Counsel:
Mr PE King (Appellants)
Mr PB McKell (Solicitor) (Respondent)
Solicitors:
Priest Legal (Appellants)
McKells Solicitors (Respondent)

File Number(s): 2015/258609
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Equity Division

Citation:

[2015] NSWSC 944; [2015] NSWSC 1229

Date of Decision:

16 July 2015; 21 August 2015

Before:

Stevenson J

File Number(s):

2012/277403

Judgment

GLEESON JA: This appeal concerns judgments of Stevenson J given on 16 July 2015 and 21 August 2015: Lawrence v Gunner; Gunner v Lawrence [2015] NSWSC 944 and [2015] NSWSC 1229.
It is convenient to set out the orders made by Stevenson J on 21 August 2015, which are the subject of the appeal:

1.   The further amended statement of claim be dismissed.
2.   Judgment that the plaintiffs/cross-defendants pay the defendant/cross-claimant $315,000.
3. Order, pursuant to s 100 of the Civil Procedure Act 2005, that the plaintiffs/cross-defendants pay interest to the defendant/cross-claimant on the judgment referred to in order 2 at the rates set forth in Uniform Civil Procedure Rules r 36.7 from 1 March 2012.
4.   Order that the proceedings RT 12/15580 and RT 12/09391 transferred to the Court from the CTTT by reason of the order made by the CTTT on 12 September 2012 and remitted NCAT to be dealt with by NCAT in light of the reasons given in these proceedings on 16 July 2015 in Lawrence v Gunner; Gunner v Lawrence [2015] NSWSC 944.
5.   Grant liberty to the parties to apply for such further orders as may…

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: [2016] NSWCA 216
Decision Date: 18 August 2016

CaseChat Overview and Summary

The Court of Appeal of New South Wales, constituted by Gleeson JA, considered an appeal concerning consent orders made in the Supreme Court. The dispute involved parties who had reached a compromise of their proceedings following alternative dispute resolution.

The central legal issue before the Court of Appeal was whether to set aside certain judgments and orders made by Stevenson J, with the exception of specific orders, in light of the parties' subsequent compromise. The court was also required to determine the appropriate costs orders for both the proceedings below and the appeal, and to consider the effect of the parties' compromise on the remaining claims.

Gleeson JA allowed the appeal, setting aside the majority of the judgments and orders made by Stevenson J. This decision reflected the parties' agreement to compromise their proceedings after engaging in alternative dispute resolution. The court ordered that there be no order as to the costs of the proceedings in the court below or of the appeal. The Further Amended Statement of Claim and Cross Claim were otherwise dismissed. The orders, including notations, were made without prejudice to any claims the parties might be advised to make under section 99 of the *Civil Procedure Act 2005* (NSW), including claims against third parties.

Orders

Orders of the court

(1) Appeal allowed.

(2) Set aside the judgment and orders of Stevenson J of 16 July 2015 and of 21 August 2015 (with the exception of orders 6, 8, 9 and 10 made 21 August 2015).

(3) Order that there be no order as to the costs of the proceedings No. SC 2012/277403 in the court below nor of this appeal.

(4) Otherwise the Further Amended Statement of Claim and Cross Claim stand dismissed.

(5) Notations

A. These orders reflect the parties’ compromise of these proceedings following successful Alternative Dispute Resolution.

B. These orders including the Notations are without prejudice to such claims under s 99 of the Civil Procedure Act 2005 (NSW) as the parties may be advised to make, including any such claims which may be made against 3rd parties.

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:	Lawrence v Gunner [2016] NSWCA 216
Hearing dates:	18 August 2016
Decision date:	18 August 2016
Before:	Gleeson JA
Decision:	(1) Appeal allowed. (2) Set aside the judgment and orders of Stevenson J of 16 July 2015 and of 21 August 2015 (with the exception of orders 6, 8, 9 and 10 made 21 August 2015). (3) Order that there be no order as to the costs of the proceedings No. SC 2012/277403 in the court below nor of this appeal. (4) Otherwise the Further Amended Statement of Claim and Cross Claim stand dismissed. (5) Notations A. These orders reflect the parties’ compromise of these proceedings following successful Alternative Dispute Resolution. B. These orders including the Notations are without prejudice to such claims under s 99 of the Civil Procedure Act 2005 (NSW) as the parties may be advised to make, including any such claims which may be made against 3rd parties.
Catchwords:	PRODEDURE - Judgments and orders – amending, varying and setting aside – consent orders
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 99, 100 Supreme Court Act 1970 (NSW) s 46
Cases Cited:	Re Felicity; FM v Secretary, Department of Family and Community Services (No 4) [2015] NSWCA 19 Lawrence v Gunner; Gunner v Lawrence [2015] NSWSC 944 Lawrence v Gunner; Gunner v Lawrence [2015] NSWSC 1229
Category:	Procedural and other rulings
Parties:	Wayne Lawrence (First Appellant) Valerie Lawrence (Second Appellant) Frances Beatrice Gunner (Respondent)
Representation:	Counsel: Mr PE King (Appellants) Mr PB McKell (Solicitor) (Respondent) Solicitors: Priest Legal (Appellants) McKells Solicitors (Respondent)
File Number(s):	2015/258609
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Division Citation: [2015] NSWSC 944; [2015] NSWSC 1229 Date of Decision: 16 July 2015; 21 August 2015 Before: Stevenson J File Number(s): 2012/277403