Maylord Equity Management Pty Ltd as Trustee of the Batterham Retirement Fund v Nauer

[2018] NSWCA 76

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Maylord Equity Management Pty Ltd as Trustee of the Batterham Retirement Fund v Nauer [2018] NSWCA 76

Hearing dates:

10 April 2018

Decision date:

10 April 2018

Before:

Basten JA; Leeming JA

Decision:

1.   Refuse the application to extend the time within which to file a notice of leave to appeal from the judgment and orders of Bergin CJ in Eq of 24 October 2016 and of Ward CJ in Eq of 22 May 2017.

 

2.   Refuse leave to appeal from the judgments of Slattery J of 6 November 2017 and 19 December 2017.

 3.   Order that the applicants pay the respondent’s costs of the proceedings.

Catchwords:

APPEAL - leave to appeal - interlocutory decisions striking out pleadings, dismissing application to set aside orders and dismissing proceedings for want of despatch - no appellable error identified - leave refused

Legislation Cited:

Supreme Court Act 1970 (NSW), s 101

Cases Cited:

Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26

Category:

Principal judgment

Parties:

Maylord Equity Management Pty Ltd as trustee of the Batterham Retirement Fund (Applicant)
Marcel Andre Nauer (Respondent)

Representation:

Counsel:
C P Carter (Applicant)

 

J R Clarke SC (Respondent)

  Solicitors:
Esplins Solicitors (respondent)

File Number(s):

2018/35657

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2017] NSWSC 634; [2017] NSWSC 1467.

Date of Decision:

24 October 2016; 12 May 2017; 6 November 2017.

Before:

Bergin CJ in Eq, Ward CJ in Eq, Slattery J

File Number(s):

2016/124822

Judgment

1. JUDGMENT of THE COURT delivered by LEEMING JA: This application for leave to appeal is brought from three decisions made by three judges of the Supreme Court, although five judgments were referred to:

1. that made by Bergin CJ in Eq on 24 October 2016 to strike out a Commercial List Statement, to refuse leave to file a proposed amended Commercial List Statement, and to pay costs in a fixed amount of $25,000 prior to filing any further proposed amended Commercial List Statement; mention has also been made of a decision made by her Honour on 16 December 2016;

2. that made by Ward CJ in Eq on 12 May 2017 and confirmed on 22 May 2017, dismissing an application to set aside the orders made by Bergin CJ in Eq, and staying the proceedings until costs in the amount of $55,000 be paid: [2017] NSWSC 634; and

3. that made by Slattery J on 6 November 2017 dismissing the proceedings for want of despatch: [2017] NSWSC 1467; there is also a later decision of his Honour on 19 December 2017: [2017] NSWSC 1783.

2. However, the gravamen of what has been put in support of the application for leave to appeal concerns the principal decisions of Bergin CJ in Eq made on 24 October 2016, Ward CJ in Eq on 12 May, and Slattery J on 6 November 2017.

3. In fact the procedural history is significantly more complex than summarised above. It has been reproduced in some detail in the reasons of Ward CJ in Eq (at [5]-[34]) and Slattery J (at [3]-[23]) and there is no need to recount it for the purposes of this leave application.

4. A question arises as to the extension of time. The summons seeking leave to appeal was filed in February 2018, many months after the orders were made by Bergin CJ in Eq and Ward CJ in Eq. However, it is convenient to pass over this and proceed directly to the substance of the application.

5. The applicants’ submissions were prepared, apparently, by the second applicant, Mr Batterham, personally, but in this Court Mr Carter of counsel has appeared and addressed orally, in some respects going beyond what has been put in writing.

6. In writing, but not orally, it was submitted that an appeal lies as of right. That submission is incorrect. All of the orders from which an appeal is sought to be brought are interlocutory within the meaning of s 101(2)(e) of the Supreme Court Act 1970 (NSW).

7. As is pointed out in the respondent’s written submissions, no submission is made in writing even purporting to identify error in the decision of Bergin CJ in Eq. No reasons were sought for that decision. At the time, the first applicant was represented by counsel, and the second applicant was not a party. At pages 17, 18 and 19 of the transcript before Bergin CJ in Eq on 24 October 2016, counsel then appearing properly and repeatedly conceded that there were inadequacies in the existing pleading. Further, Ward CJ in Eq concluded in her reasons that there was “no error in principle or material misapprehension of fact” in that decision: [2017] NSWSC 634 at [47].

8. Complaint is made that the decision of Ward CJ in Eq involved error of law because her Honour failed to address “key issues”, said to be based on “new information”. The problem faced here is that the pleading was plainly defective, something which was conceded by counsel who had appeared before Bergin CJ in Eq. It is also said that Ward CJ in Eq failed to consider all the orders sought in the notice of motion. But the other orders did not arise until and unless either the orders made by Bergin CJ in Eq were set aside or the lump sum costs ordered were paid.

9. Complaint is also made that the decision of Slattery J involved errors of law. However, the primary issue before his Honour was whether there was any prospect of the orders which had been made in 2016 and 2017 as to the payment of costs being satisfied. It was not suggested that there was any prospect in the near future of those costs orders being paid, something noted by Slattery J at [32] and [33] of his reasons.

10. Contrary to a submission made by Mr Carter at one stage, Slattery J expressly had regard to the prospect that if the proceedings were dismissed by reason of the claim being statute-barred, the first applicant would be unable to prosecute its claim. His Honour did so at [42]. When this was exposed, the submission was made that “due weight” had not been placed upon that consideration. That is insufficient to amount to appellable error.

11. As Mr Carter expressly acknowledged, ordinarily it is appropriate to grant leave to appeal only concerning matters that involve issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond [what is] merely arguable”: see Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [33] and The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]. No question of principle or of general importance arises in this application. Further, there is no demonstrated injustice. In substance, the litigation has not proceeded because concededly inadequate pleadings have led to the incurring of costs which have not been paid.

12. Leave to appeal, and the requisite extensions of time, should be refused.

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Decision last updated: 12 April 2018