Lawrence v Gunner (No 2) - [2015] NSWCA 395

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Lawrence v Gunner (No 2) [2015] NSWCA 395
Hearing dates: 4 December 2015
Date of orders: 04 December 2015
Decision date: 11 December 2015
Before: Gleeson JA
Decision:
(1)   The application by the appellants to vary the stay ordered by the Court on 15 October 2015 is refused with costs. The reasons of the Court are reserved.

(2)   Stand over the balance of the appellants’ further amended notice of motion filed 24 November 2015 and the respondent’s notice of motion filed 2 November 2015 to 8 February 2016 before Gleeson JA at 10.15 am.

(3)   Direct the appellants to serve a draft amended notice of appeal by 4.00 pm on 18 December 2015.

(4)   In the absence of consent to the form of the draft amended notice of appeal:

   (a)   the respondent to file and serve short written submissions not exceeding 3 pages outlining the particular objections and grounds for objection by 1 February 2016;

   (b)   the appellants to file and serve short written submissions in reply not exceeding 3 pages by 4 February 2016.

(5)   Grant leave to the appellants to file and serve any notice of motion in respect of an application to receive additional evidence on appeal, together with all supporting affidavits by no later than 22 January 2016, such motion to be returnable before Gleeson JA on 8 February 2016 at 10.15 am for directions.

(6)   Subject to 1 above, reserve all other questions of costs.
(7)   Vacate the directions hearing before the Registrar on 9 December 2015 at 9.00 am.
Catchwords: PROCEDURE – appeals – application for variation of existing stay pending appeal – whether arguable grounds demonstrated – variation of stay refused
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Sch 4, cl 6
Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) s 23
Residential Tenancies Act 1987 (NSW) s 71
Residential Tenancies Act 2010 (NSW) ss 81, 83, 119
Supreme Court Act 1970 (NSW) s 75A(8)
Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 42.1
Cases Cited: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 40
Gunner v Lawrence; Lawrence v Gunner (Civil and Administrative Tribunal (NSW), Senior Member Rosser, 6 November 2015, unrep)
Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383; 55 NSWLR 737
Lawrence v Gunner [2015] NSWCA 322
Whiteford v Commonwealth of Australia (1995) 38 NSWLR 100
Category: Procedural and other rulings
Parties: Wayne Lawrence (First Applicant)
Valerie Lawrence (Second Applicant)
Frances Beatrice Gunner (Respondent)
Representation:
Counsel:
P E King (First and Second Applicants)
A Hourigan (Respondent)
Solicitors:
Applicants (Self-represented)
Marshall Law (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

Before:

Stevenson J

File Number(s):

2012/277403

Judgment

GLEESON JA: Before the Court on 4 December 2015 were two motions. First, a further amended notice…

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.

Continue reading Lawrence v Gunner (No 2)

Details

AGLC: Lawrence v Gunner (No 2) [2015] NSWCA 395
Case: [2015] NSWCA 395
Decision Date: 11 December 2015

CaseChat Overview and Summary

In *Lawrence v Gunner (No 2)*, the appellants sought a variation of an existing stay ordered by the Court on 15 October 2015. The application was heard by Gleeson JA.

The primary legal issue before the Court was whether the appellants had demonstrated arguable grounds to justify a variation of the existing stay pending their appeal.

Gleeson JA refused the application to vary the stay, finding that the appellants had not demonstrated arguable grounds for such variation. The Court ordered that the application be refused with costs, with the reasons for this decision to be reserved. The Court also made directions regarding the further conduct of the proceedings, including the filing of an amended notice of appeal and potential applications for additional evidence.

Orders

Orders of the court

(1) The application by the appellants to vary the stay ordered by the Court on 15 October 2015 is refused with costs. The reasons of the Court are reserved.

(2) Stand over the balance of the appellants’ further amended notice of motion filed 24 November 2015 and the respondent’s notice of motion filed 2 November 2015 to 8 February 2016 before Gleeson JA at 10.15 am.

(3) Direct the appellants to serve a draft amended notice of appeal by 4.00 pm on 18 December 2015.

(4) In the absence of consent to the form of the draft amended notice of appeal:

(a) the respondent to file and serve short written submissions not exceeding 3 pages outlining the particular objections and grounds for objection by 1 February 2016;

(b) the appellants to file and serve short written submissions in reply not exceeding 3 pages by 4 February 2016.

(5) Grant leave to the appellants to file and serve any notice of motion in respect of an application to receive additional evidence on appeal, together with all supporting affidavits by no later than 22 January 2016, such motion to be returnable before Gleeson JA on 8 February 2016 at 10.15 am for directions.

(6) Subject to 1 above, reserve all other questions of costs.

(7) Vacate the directions hearing before the Registrar on 9 December 2015 at 9.00 am.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Lawrence v Gunner (No 2) [2015] NSWCA 395
Hearing dates:	4 December 2015
Date of orders:	04 December 2015
Decision date:	11 December 2015
Before:	Gleeson JA
Decision:	(1) The application by the appellants to vary the stay ordered by the Court on 15 October 2015 is refused with costs. The reasons of the Court are reserved. (2) Stand over the balance of the appellants’ further amended notice of motion filed 24 November 2015 and the respondent’s notice of motion filed 2 November 2015 to 8 February 2016 before Gleeson JA at 10.15 am. (3) Direct the appellants to serve a draft amended notice of appeal by 4.00 pm on 18 December 2015. (4) In the absence of consent to the form of the draft amended notice of appeal: (a) the respondent to file and serve short written submissions not exceeding 3 pages outlining the particular objections and grounds for objection by 1 February 2016; (b) the appellants to file and serve short written submissions in reply not exceeding 3 pages by 4 February 2016. (5) Grant leave to the appellants to file and serve any notice of motion in respect of an application to receive additional evidence on appeal, together with all supporting affidavits by no later than 22 January 2016, such motion to be returnable before Gleeson JA on 8 February 2016 at 10.15 am for directions. (6) Subject to 1 above, reserve all other questions of costs. (7) Vacate the directions hearing before the Registrar on 9 December 2015 at 9.00 am.
Catchwords:	PROCEDURE – appeals – application for variation of existing stay pending appeal – whether arguable grounds demonstrated – variation of stay refused
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Sch 4, cl 6 Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) s 23 Residential Tenancies Act 1987 (NSW) s 71 Residential Tenancies Act 2010 (NSW) ss 81, 83, 119 Supreme Court Act 1970 (NSW) s 75A(8) Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 42.1
Cases Cited:	Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 40 Gunner v Lawrence; Lawrence v Gunner (Civil and Administrative Tribunal (NSW), Senior Member Rosser, 6 November 2015, unrep) Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383; 55 NSWLR 737 Lawrence v Gunner [2015] NSWCA 322 Whiteford v Commonwealth of Australia (1995) 38 NSWLR 100
Category:	Procedural and other rulings
Parties:	Wayne Lawrence (First Applicant) Valerie Lawrence (Second Applicant) Frances Beatrice Gunner (Respondent)
Representation:	Counsel: P E King (First and Second Applicants) A Hourigan (Respondent) Solicitors: Applicants (Self-represented) Marshall Law (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 Before: Stevenson J File Number(s): 2012/277403