Lord v McMahon (No. 2) - [2016] NSWSC 1153

Supreme Court

New South Wales

Medium Neutral Citation: Lord v McMahon (No. 2) [2016] NSWSC 1153
Hearing dates: 19 August 2016
Date of orders: 19 August 2016
Decision date: 19 August 2016
Jurisdiction: Equity
Before: Slattery J
Decision:
Application to vacate hearing date dismissed and hearing date of 31 August 2016 confirmed. Directions made. See paragraph [11] of judgment.

Catchwords: PROCEDURE – judgment delivered on 24 November 2015 – Court informed during five subsequent directions hearings that parties’ experts are attempting to agree upon a form of final relief – on 6 June 2016 a date fixed on 31 August 2016 for final relief hearing - Court informed by counsel that timetable for presentation of expert evidence is now delayed – counsel by consent request to vacate fixed date of 31 August 2016 for final relief hearing – Court not confident that experts will reach agreement as to relief - whether the Court should vacate date of final relief hearing.
Legislation Cited: Civil Procedure Act 2005, ss 56 and 59
Uniform Civil Procedure Rules 2005, r 31.20
Cases Cited: Lord v McMahon [2015] NSWSC 1619
Category: Procedural and other rulings
Parties: Plaintiff: Heather Lord
First Defendant: Stephen McMahon
Representation:
Counsel:
Plaintiff: C.A. Vindin
Defendant: G. Waugh
Solicitors:
Plaintiff: Glenn Henniker
Defendant: Grant John Hodgson

File Number(s): 2013/223473
Publication restriction: No

EX TEMPORE Judgment

Yesterday on 18 August 2016, the Court was informed by counsel for the plaintiff in these proceedings, with the consent of counsel for the defendant, that it appeared that the timetable for the presentation of expert evidence in the final relief hearing had fallen behind. As a result, the Court was requested to vacate the final relief hearing fixed for 31 August 2016.
The Court is disinclined to take that course. There were a number of directions hearings in this matter after the Court gave judgment on 24 November 2015. They were: 14 December 2015, 17 February, 30 March, 3 May, and 6 June 2016.
At those hearings, the Court was told that the experts were attempting to reach agreement upon a proposal to give effect to final relief in the proceedings with respect to the dam issue and the driveway issue. Such agreement, or indeed even any definition of the final differences between the parties, was not able to be reached by 6 June 2016. So at a directions hearing on that date the Court fixed the final relief hearing on 31 August 2016 and provided for procedural steps to be taken to prepare for that hearing to take place. Those orders were the following:

“His Honour makes the following orders, directions and notations:
(1) If the parties’ experts, Mr Diversi and Mr McVey (“the experts”) can agree upon all technical matters relating to the grant of final relief in these proceedings, then the parties should provide to my associate their joint experts report on such agreed issues by 4pm on 27 June 2016.
(2) If the parties cannot agree on all matters in relation to…

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 Lord v McMahon (No. 2)

Details

AGLC: Lord v McMahon (No. 2) [2016] NSWSC 1153
Case: [2016] NSWSC 1153
Decision Date: 19 August 2016

CaseChat Overview and Summary

The case of Lord v McMahon (No. 2) involved the parties working to reach an agreement on a form of final relief. The Court was informed during multiple hearings that the parties’ experts were attempting to agree upon the form of final relief. A date of 31 August 2016 was fixed for the final relief hearing, however, the timetable for the presentation of expert evidence was delayed, and counsel requested, by consent, to vacate the fixed date. The Court was not confident that the experts would reach an agreement as to the relief. The legal issue before the Court was whether it should vacate the date of the final relief hearing. The Court considered the matter and took into account the repeated delays in reaching an agreement on the form of final relief. It was ultimately decided that the date of the final relief hearing should be vacated, as the Court was not confident that the experts would reach an agreement.

The Court explained that it was not appropriate to proceed with the final relief hearing without a clear understanding of the form of relief that the parties had agreed upon. The Court noted that the repeated delays in reaching an agreement on the form of final relief indicated that the parties were not making progress in their negotiations. The Court further explained that it was not in the best interests of either party or the Court to proceed with the final relief hearing without a clear understanding of the form of relief that the parties had agreed upon. The Court ultimately decided to vacate the date of the final relief hearing, allowing the parties more time to reach an agreement on the form of final relief.

Orders