Malouf v Prince (No 2)

Case [2010] NSWCA 51

New South Wales


Court of Appeal


CITATION: Malouf v Prince (No 2) [2010] NSWCA 51
HEARING DATE(S): 12 February 2010
 
JUDGMENT DATE: 
23 March 2010
JUDGMENT OF: McColl JA at 1; Macfarlan JA at 1; Nicholas J at 1
DECISION: 1 Dismiss the applicant’s original and amended notices of motion with costs. 2 Respondent to pay the costs of the application for leave to file the notice of motion dated 12 February 2010.
CATCHWORDS: PROCEDURE – application to set aside or vary orders filed within 14-day time limit prescribed by rules – amended application seeking more extensive orders filed outside 14-day limit – whether Uniform Civil Procedure Rules 2005 (NSW), 36.16 confers power to entertain amended application - PROCEDURE – powers of Court – whether s 14, Civil Procedure Act 2005 (NSW) confers power to dispense with requirements of Uniform Civil Procedure Rules 2005 (NSW), 36.16 - PROCEDURE – whether costs order should be varied
LEGISLATION CITED: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005
CATEGORY: Principal judgment
CASES CITED: Bailey v Marinoff [1971] HCA 49; 125 CLR 529 Bennette v Cohen (No. 2) [2009] NSWCA 162
Deputy Commissioner of Taxation v Meredith (No. 2) [2008] NSWCA 133
FS Architects Pty Ltd v Rockcote Enterprises Pty Ltd; FS Architects Pty Ltd v Carelli [2009] HCASL 52 Hancock v Arnold; Dodd v Arnold (No 2) [2009] NSWCA 19
Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd; Jeffery & Katauskas Pty Ltd v Rickard Constructions Pty Ltd (subject to Deed of Company Arrangement) [2009] HCA 43; (2009) 239 CLR 75
Malouf v Prince [2008] NSWCA 15
Malouf v Prince [2009] NSWCA 159
Newmont Yandal Operations Pty Ltd v J Aron Corp [2007] NSWCA 195; (2007) 70 NSWLR 411
Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd (No 2) [2009] NSWCA 336
Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No 2); Carelli v FS Architects Pty Ltd (No 2) [2008] NSWCA 205
Spina v Permanent Custodians Limited (No 2) [2009] NSWCA 419
PARTIES: John Malouf - Applicant
Stephen Thomas Prince - Respondent
FILE NUMBER(S): CA 40173 of 2008
COUNSEL: C R C Newlinds SC and A T S Dawson - Applicant
F G Lever SC - Respondent
SOLICITORS: Attwood Marshall Lawyers (QLD) - Applicant
Walters Solicitors - Respondent
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 24/07
LOWER COURT JUDICIAL OFFICER: McLoughlin DC J
LOWER COURT DATE OF DECISION: 11/06/08, 12/06/08





                          CA 40173/08
                          DC 24/2007

                          McCOLL JA
                          MACFARLAN JA
                          NICHOLAS J

                          Tuesday 23 March 2010
John Malouf v Stephen Thomas Prince (No 2)
Judgment

On 24 June 2009 the Court made the following orders in Malouf v Prince [2009] NSWCA 159 (“Malouf 1”):


          “1 Application for leave to appeal refused with costs.

          2. Motion to allow further evidence dismissed.

          3 Applicant to pay the costs of the application before Beazley JA, for leave to appeal and the motion to allow further evidence.

          4. Respondent’s motion for dismissal…

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AGLC
Malouf v Prince (No 2) [2010] NSWCA 51
Case
[2010] NSWCA 51
Decision Date

CaseChat Overview and Summary

In *Malouf v Prince (No 2)*, the applicant sought to set aside or vary orders previously made by the court. The applicant initially filed an application within the 14-day time limit prescribed by rule 36.16 of the *Uniform Civil Procedure Rules 2005* (NSW). However, an amended application, seeking more extensive orders, was filed outside this 14-day period. The respondent argued that the court lacked the power to entertain the amended application.

The central legal issues before the Court of Appeal of New South Wales were whether rule 36.16 of the *Uniform Civil Procedure Rules 2005* (NSW) conferred the power to entertain the amended application filed outside the prescribed time limit, and whether section 14 of the *Civil Procedure Act 2005* (NSW) empowered the court to dispense with the requirements of rule 36.16. The court was also asked to consider whether a costs order should be varied.

The court held that rule 36.16 did not confer power to entertain an amended application filed outside the 14-day time limit. It further determined that section 14 of the *Civil Procedure Act 2005* (NSW) did not grant the court the power to dispense with the time limit stipulated in rule 36.16 for the filing of an amended notice of motion seeking more extensive relief. Consequently, the court dismissed both the original and amended notices of motion. The respondent was ordered to pay the costs of the application for leave to file the notice of motion dated 12 February 2010.

Orders

Orders of the court

1 Dismiss the applicant’s original and amended notices of motion with costs. 2 Respondent to pay the costs of the application for leave to file the notice of motion dated 12 February 2010.

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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