Maher v Bayview Golf Club (No. 2) - [2004] NSWSC 611

CITATION: Maher v Bayview Golf Club (No. 2) [2004] NSWSC 611

HEARING DATE(S): 7 July 2004

JUDGMENT DATE:
7 July 2004

JURISDICTION:
Equity

JUDGMENT OF: Campbell J

DECISION: New issue not permitted to be raised

CATCHWORDS: PROCEDURE - courts and judges generally - losing party seeks to raise issue not previously litigated on argument about form of orders - whether slip rule can be used to justify such a course - costs (no question of principle) - stay pending appeal (no question of principle)

CASES CITED: L Shaddock & Associates Proprietary Limited v The Council of the City of Parramatta (No 2) (1982) 151 CLR 590
Saffron v Societe Miniere Cafrika (1958) 100 CLR 231
Tak Ming Co Ltd v Yee Sang Metal Supplies Co [1973] 1 WLR 300

PARTIES :
Reginald Bede Maher - Plaintiff
Bayview Golf Club Limited - Defendant

FILE NUMBER(S): SC 4626/02

COUNSEL: N Francey - Plaintiff
D Roberts - Defendant

SOLICITORS: F J Smith & Company - Plaintiff
Edgington & Alfonso - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

WEDNESDAY 7 JULY 2004

4626/02 REGINALD BEDE MAHER v BAYVIEW GOLF CLUB LIMITED (No. 2)

JUDGMENT – Ex Tempore (Revised 7 July 2004)

1 HIS HONOUR: I delivered reasons for judgment in this matter on 4 June 2004. Those reasons for judgment included, at paragraph [136], a set of draft orders that were ones that seemed appropriate to give effect to the conclusion reached in the judgment. However, those orders had been drafted without input from counsel as to their precise terms. I therefore gave counsel the opportunity to make further submissions concerning the proposed orders.

2 That opportunity has been availed of today. Both parties took my draft orders as the starting point for their submissions. Counsel for Mr Maher submitted that my draft orders should be made in their entirety. Counsel for the Golf Club proposed that there should be two alterations to those draft orders.

3 The first alteration proposed by counsel for the Golf Club arose in the first draft order, where there was a reference to a plan of Paul Keen & Co dated 5 October 2002. The contention of the defendant was that that reference should be replaced by a reference to a plan proposed by Messrs Byrne & Associates Pty Ltd Consulting Surveyors and Engineers dated 29 June 2004.

4 The plan of Paul Keen & Co dated 5 October 2002 is one which shows an easement which is 6.08 metres wide at its northernmost extent. The plan of Byrne & Associates Pty Ltd dated 28 June 2004 is one which shows an easement which is 3 metres wide at its northernmost extent, and which gradually widens as one goes south to the place where the easement takes an obtuse-angled turn.

5 One basis on which the Golf Club submits that the easement should be in the form of the Byrne & Associates plan is that there was clear evidence at…

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: [2004] NSWSC 611
Decision Date: 7 July 2004

CaseChat Overview and Summary

The case of Maher v Bayview Golf Club (No. 2) involved the plaintiff seeking to challenge a decision previously made by the court, specifically regarding the form of orders that had been issued. The plaintiff, Maher, sought to raise an issue that had not been previously litigated on the argument about the form of orders. The dispute was heard and determined by the Supreme Court of Victoria. The primary issue before the court was whether the slip rule could be employed to allow the plaintiff to raise a new issue that had not been previously argued. The slip rule is a legal principle that allows for the correction of errors in judicial decisions that may have been caused by inadvertence, accident, or mistake.

The court examined the circumstances under which the slip rule could be invoked and whether it was appropriate to do so in this instance. The court considered the principle that the slip rule should be used sparingly and only in cases where it is necessary to prevent a manifest injustice. The court held that the slip rule could not be used to justify the plaintiff's attempt to raise an issue that had not been previously litigated on argument about the form of orders. The court found that the plaintiff had failed to demonstrate that the error was inadvertent, accidental, or mistaken and that there was no manifest injustice that would warrant the use of the slip rule. The court also considered the issue of costs and the stay pending appeal, but found that there was no question of principle involved in those matters.

In conclusion, the court held that the slip rule could not be used to allow the plaintiff to raise an issue that had not been previously litigated on argument about the form of orders. The court emphasised that the slip rule should be used sparingly and only in cases where it is necessary to prevent a manifest injustice. The court found that the plaintiff had not demonstrated that the error was inadvertent, accidental, or mistaken, and that there was no manifest injustice that would warrant the use of the slip rule. The court dismissed the plaintiff's application to raise the new issue and made no order as to costs or the stay pending appeal.

Orders