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Malvina Park Pty Ltd v Johnson

Malvina Park Pty Ltd v Johnson

Case [2019] NSWSC 1490 30 October 2019

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Supreme Court

New South Wales

Medium Neutral Citation: Malvina Park Pty Ltd v Johnson [2019] NSWSC 1490
Hearing dates: 29 November 2019
Date of orders: 30 October 2019
Decision date: 30 October 2019
Jurisdiction: Common Law
Before: Walton J
Decision:
The Court makes the following orders:

(1) Leave to appeal is refused.
(2) The defendant shall have costs of the appeal as agreed or as assessed.
Catchwords: APPEAL – leave requirement – Legal Profession Uniform Law – Legal Profession Uniform Law Application Act – Interpretation of Legislation Act 1984 (Vic) – disclosure obligation – construction of s 174(3) – principles for leave – application for additional evidence – Civil Procedure Act 2005 – absence of error of principle, matter of public importance, or injustice – lack of merit of disclosure and disapplication grounds – small amount claim – remedy as of right to the District Court – leave refused
Legislation Cited: Civil Procedure Act 2005 (NSW)
Interpretation Act 1987 (NSW)
Interpretation of Legislation Act 1984 (Vic)
Legal Profession Act 2004 (NSW)
Legal Profession Uniform General Rules 2015 (NSW)
Legal Profession Uniform Law Application Act 2014 (NSW)
Legal Profession Uniform Law Application Act 2014 (Vic)
Legal Profession Uniform Law (NSW)
Local Court Act 2003 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
Motor Accidents Compensation Regulation 2015 (NSW)
Pastures Protection Act 1902 (Cth)
Cases Cited: Ackerman v Morgan [2019] NSWSC 1250
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56
Clutch & Brake Australia Pty Ltd v Khamis [2018] NSWSC 777
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594; [1990] HCA 17
Coulter v R (1988) 164 CLR 350; [1988] HCA 3
Credit Tribunal, Re: Ex parte General Motors Acceptance Corp Australia (1977) 137 CLR 545; [1977] HCA 34
eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd (2015) 90 NSWLR 451; [2015] NSWCA 284
Frigger v Madgwicks [2018] VSC 281
Gibson v Drumm [2016] NSWCA 206
Inglis v Robertson (1898) 25 R (Ct of Sess) 70; [1898] AC 616
Macquarie v Hunter New England Local Health District [2019] NSWCA 98
Metziya Pty Ltd v ICR Engineering Pty Ltd [2016] NSWSC 1703
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Provincial Insurance Australia Pty Ltd v Consolidated Wood Products (1991) 25 NSWLR 541
Rose v Tunstall [2018] NSWCA 241
Ryde Developments Pty Ltd v Property Investors Alliance Pty Ltd [2017] NSWCA 339
Saunders v Borthistle (1904) 1 CLR 379; [1904] HCA 13
Secure Parking Pty Limited v Ralan Property Services Pty Limited (No 1) [2018] NSWSC 660
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35
SZTAL v Minister for Immigration and Border Protection (2017) 347 ALR 405; [2017] HCA…

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 Malvina Park Pty Ltd v Johnson

Details

AGLC: Malvina Park Pty Ltd v Johnson [2019] NSWSC 1490
Case: [2019] NSWSC 1490
Decision Date: 30 October 2019

CaseChat Overview and Summary

In Malvina Park Pty Ltd v Johnson, the plaintiff, Malvina Park, sought to appeal against the dismissal of their claim for an order of disclosure against the defendant, Johnson, in the Supreme Court of Victoria. The dispute centred on the interpretation of section 174(3) of the Legal Profession Uniform Law Application Act, which pertains to the disclosure obligations of legal practitioners. Malvina Park argued that Johnson had failed to disclose documents relevant to their claim and sought an order for disclosure from the Supreme Court. The court had dismissed Malvina Park's claim, finding that they were not entitled to disclosure as a matter of right under the legislation.

The primary legal issue before the court was whether Malvina Park was entitled to disclosure as a matter of right under section 174(3) of the Legal Profession Uniform Law Application Act. The court also had to consider whether Malvina Park could be granted leave to appeal under the Civil Procedure Act 2005, given that the appeal did not involve an error of principle, a matter of public importance, or an injustice. Furthermore, the court needed to assess whether there were grounds for additional evidence, such as the lack of merit in the disclosure claim and the disapplication of the legislation.

The court held that Malvina Park was not entitled to disclosure as a matter of right. The construction of section 174(3) indicated that the right to disclosure was not automatic but contingent upon specific conditions being met. The court also determined that there were no grounds for granting leave to appeal, as the appeal did not satisfy any of the criteria outlined in the Civil Procedure Act 2005. The lack of merit in the disclosure claim and the absence of any public importance or injustice further supported the refusal of leave. The small amount of the claim and the remedy being available as of right in the District Court also played a role in the decision.

The court refused Malvina Park's application for leave to appeal, thereby dismissing their claim for an order of disclosure against Johnson. The court's reasoning was based on the statutory interpretation of section 174(3) and the criteria for granting leave under the Civil Procedure Act 2005. The appeal did not meet the necessary conditions for leave, and the court concluded that there were no grounds for additional evidence or disapplication of the legislation.

Orders