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McClellan v Horswill

McClellan v Horswill

Case [2020] NSWCA 30 4 March 2020

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: McClellan v Horswill [2020] NSWCA 30
Hearing dates: 20 February 2020
Decision date: 04 March 2020
Before: White JA; Simpson AJA
Decision:
Summons dismissed with costs.

Catchwords: CIVIL PROCEDURE — Court of Appeal — Leave to appeal – whether leave to appeal be granted where applicant denied an adjournment before the primary judge leading to the matter proceeding to determination in the applicant’s absence – the applicant did not establish a case which goes beyond merely arguable – no issue of principle or question of public importance – leave refused
Legislation Cited: Contracts Review Act 1980 (NSW), s 7
Conveyancing Act 1919 (NSW), s 54A
Family Law Act 1975 (Cth)
Supreme Court Act 1970 (NSW), s 101
Cases Cited: Be Financial Services Pty Ltd atf Be Financial Operations Trust v Das [2012] NSWCA 164
Cameron v Cole (1944) 68 CLR 571 at 589; [1944] HCA 5
Clyne v New South Wales Bar Association (1960) 104 CLR 186
Craig v Kanssen [1943] 1 KB 256
Double Bay Newspapers v The Fitness Lounge Pty Ltd [2006] NSWSC 226; 57 ACSR 131
Horswill v McClellan [2019] NSWSC 557
House v The King (1936) 55 CLR 499; [1936] HCA 40
Nobarani v Mariconte [2018] HCA 36; (2018) 359 ALR 31
Re DG and the Adoption Act 2000 [2007] NSWCA 241; (2007) 244 ALR 195
Richard v Cornford (No. 3) [2010] NSWCA 134
Sali v SPC Ltd (1993) 116 ALR 625
The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 28
Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR (NSW) 239
Category: Procedural and other rulings
Parties: Adam McClellan (Applicant)
Robert Leslie Horswill (First Respondent)
Kim Maree Horswill (Second Respondent)
Jennifer Anne McClellan (Third Respondent)
Representation:
Counsel:
P R Glissan (Applicant)
D C Price (First and Second Respondents)
Submitting appearance (Third Respondent)
Solicitors:
n/a (Applicant)
Shaddicks Legal (First and Second Respondents)

File Number(s): 2019/181467
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2019] NSWSC 557

Date of Decision:

16 May 2019

Before:

Darke J

File Number(s):

2017/290046

Judgment

WHITE JA: This is an application for leave to appeal from orders of the Equity Division (Darke J) for specific performance of a contract for sale of land (Horswill v McClellan [2019] NSWSC 557).
The applicant and his former wife (Ms Warren) were the registered proprietors of land in West Portland Road, Sackville. On 19 May 2015 orders were made by consent by the Federal Circuit Court of Australia in proceedings under the Family Law Act 1975 (Cth) between Ms Warren and Mr McClellan. The consent orders were as follows:

“1. That the Applicant Wife is forthwith appointed the trustee for sale for the property situated at 349 West Portland Road, Sackville, New South Wales and being the whole of the land comprised in title reference 11/258602 (‘Sackville property’).
2. That the parties shall do all…

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 McClellan v Horswill

Details

AGLC: McClellan v Horswill [2020] NSWCA 30
Case: [2020] NSWCA 30
Decision Date: 4 March 2020

CaseChat Overview and Summary

McClellan (the applicant) sought leave to appeal from a decision of the primary judge. The dispute arose when the applicant was denied an adjournment of proceedings before the primary judge, which resulted in the matter being determined in the applicant's absence. The application for leave to appeal was heard by White JA and Simpson AJA in the Court of Appeal.

The central legal issue before the Court of Appeal was whether leave to appeal should be granted in circumstances where the applicant alleged an error in the primary judge's refusal to grant an adjournment, leading to the applicant's inability to participate in the hearing. The Court was required to consider whether the applicant had demonstrated a sufficient basis for granting leave, such as an arguable case, an issue of principle, or a question of public importance.

The Court of Appeal reasoned that the applicant had not established a case that went beyond merely arguable. It was not satisfied that there was any issue of principle or question of public importance raised by the refusal of the adjournment. Consequently, the Court concluded that the threshold for granting leave to appeal had not been met.

The summons for leave to appeal was dismissed, and the applicant was ordered to pay the costs of the proceedings.

Orders

Orders of the court

Summons dismissed with costs.

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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Citations

AGLC Citation

McClellan v Horswill [2020] NSWCA 30

Most Recent Citation

Re Estate of the Late Gerhard Anthony Haberl (also known as Gary Anthony Haberl) [2022] NSWSC 704

Cases citing this decision · 2 of 2 shown

Re Estate of the Late Gerhard Anthony Haberl (also known as Gary Anthony Haberl)
[2022] NSWSC 704 Para 92

…to deal with matters instituted under s 79A: Young v Lalic (2006) 197 FLR 27; [2006] NSWSC 18 at [37]-[39] (Brereton J) cited in DJ Singh v DH Singh [2020] NSWCA 30 at [250] (Gleeson JA, Leeming and White JJA agreeing).…
Gorman v McKnight (No 2)
[2021] NSWCA 33

…“1 That paragraph 30 of the reasons of the Court of Appeal in Gorman v McKnight [2020] NSWCA 30 ( the Reasons ) be withdrawn. [1] 2 In the alternative to (1), that paragraph 30 of the Reasons be redacted. 3 Costs. 4 Such other order as the Court of Appeal thinks fit.” 1. The media neutral citation is incorrect. It…

View all 2 citing cases →

Cases cited in this decision · 16 of 16 shown

Horswill v McClellan
[2019] NSWSC 557 Para 1

…ation for leave to appeal from orders of the Equity Division (Darke J) for specific performance of a contract for sale of land ( Horswill v McClellan [2019] NSWSC 557).…
Nobarani v Mariconte (No 2)
[2018] HCA 49 Para 16

…llan would also have to show that he was deprived of the possibility of successfully defending the proceeding ( Nobarani v Mariconte [2018] HCA 36; (2018) 359 ALR 31).…
Nobarani v Mariconte
[2018] HCA 36 Para 16

…guable. Mr McLellan would also have to show that he was deprived of the possibility of successfully defending the proceeding ( Nobarani v Mariconte [2018] HCA 36; (2018) 359 ALR 31).…
Horseshoe Pastoral Co Pty Ltd v Rixon
[2018] NSWCA 121 Para 33

…ce of $50,000. The fact that the entirety of the Sackville property is worth more than $100,000 is irrelevant ( Horseshoe Pastoral Co Pty Ltd v Rixon [2018] NSWCA 121 at [3]). The application raises no issue of principle or question of public importance. It does not appear that the judgment contains an error going…
Levy v Bablis
[2013] NSWCA 28 Para 54

…In The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 28 at [13] Bathurst CJ, with whom Beazley and McColl JJA agreed, pithily summarised the principles on which applications for leave to appeal are determined as follows:…
The Age Company Ltd v Liu
[2013] NSWCA 26 Para 27

…( Be Financial Services Pty Ltd atf Be Financial Operations Trust v Das [2012] NSWCA 164 at [33]; The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]).…
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das
[2012] NSWCA 164 Para 27

…ehalf of Mr McCLellan does not rise above that which is “merely arguable” ( Be Financial Services Pty Ltd atf Be Financial Operations Trust v Das [2012] NSWCA 164 at [33]; The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]).…
Richards v Cornford (No 3)
[2010] NSWCA 134

…iconte [2018] HCA 36; (2018) 359 ALR 31 Re DG and the Adoption Act 2000 [2007] NSWCA 241; (2007) 244 ALR 195 Richard v Cornford (No. 3) [2010] NSWCA 134 Sali v SPC Ltd (1993) 116 ALR 625 The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 28 Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR (NSW) 239 Category:…
Re DG and the Adoption Act 2000
[2007] NSWCA 241 Para 31

…he issue has no monetary value leave is required ( Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 205; Re DG and the Adoption Act 2000 [2007] NSWCA 241; (2007) 244 ALR 195 at [17]-[21]).…
Double Bay Newspapers Pty Ltd v The Fitness Lounge Pty Ltd
[2006] NSWSC 226 Para 15

…ima facie defence on the merits ( Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR (NSW) 239 at 243; Double Bay Newspapers v The Fitness Lounge Pty Ltd [2006] NSWSC 226; 57 ACSR 131).…
Sali v SPC Ltd
[1993] HCA 47

…ALR 31 Re DG and the Adoption Act 2000 [2007] NSWCA 241; (2007) 244 ALR 195 Richard v Cornford (No. 3) [2010] NSWCA 134 Sali v SPC Ltd (1993) 116 ALR 625 The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 28 Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR (NSW) 239 Category: Procedural and other rulings Part…
Clyne v New South Wales Bar Association
[1960] HCA 40 Para 31

…ss one of sub-paras 101(2)(r)(i) or (ii) is satisfied. If the issue has no monetary value leave is required ( Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 205; Re DG and the Adoption Act 2000 [2007] NSWCA 241; (2007) 244 ALR 195 at [17]-[21]).…
Cameron v Cole
[1944] HCA 5 Para 12

…Mr McClellan invoked the reasons of Rich J in Cameron v Cole (1944) 68 CLR 571 at 589; [1944] HCA 5 that:…
House v R
[1936] HCA 40 Para 10

…The primary judge’s refusal of an adjournment was a discretionary decision to which the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40 apply.…
[1943] 1 KB 256
[1943] 1 KB 256 Para 13

…notice of the proceeding is a fundamental irregularity that entitles the defendant to have the order set aside ex debito justitiae ( Craig v Kanssen [1943] 1 KB 256).…
House v The King
63 WN 176 Para 10

…The primary judge’s refusal of an adjournment was a discretionary decision to which the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40 apply.…

Legislation cited in this decision · 4

Contracts Review Act 1980 (NSW)
7 2 mentions (from Para 4)
Conveyancing Act 1919 (ACT)
54A 2 mentions (from Para 4)
Supreme Court Act 1970 (NSW)
101 2 mentions (from Para 29)
Family Law Act 1975 (Cth)
1 mention (from Para 2)

Medium Neutral Citation:	McClellan v Horswill [2020] NSWCA 30
Hearing dates:	20 February 2020
Decision date:	04 March 2020
Before:	White JA; Simpson AJA
Decision:	Summons dismissed with costs.
Catchwords:	CIVIL PROCEDURE — Court of Appeal — Leave to appeal – whether leave to appeal be granted where applicant denied an adjournment before the primary judge leading to the matter proceeding to determination in the applicant’s absence – the applicant did not establish a case which goes beyond merely arguable – no issue of principle or question of public importance – leave refused
Legislation Cited:	Contracts Review Act 1980 (NSW), s 7 Conveyancing Act 1919 (NSW), s 54A Family Law Act 1975 (Cth) Supreme Court Act 1970 (NSW), s 101
Cases Cited:	Be Financial Services Pty Ltd atf Be Financial Operations Trust v Das [2012] NSWCA 164 Cameron v Cole (1944) 68 CLR 571 at 589; [1944] HCA 5 Clyne v New South Wales Bar Association (1960) 104 CLR 186 Craig v Kanssen [1943] 1 KB 256 Double Bay Newspapers v The Fitness Lounge Pty Ltd [2006] NSWSC 226; 57 ACSR 131 Horswill v McClellan [2019] NSWSC 557 House v The King (1936) 55 CLR 499; [1936] HCA 40 Nobarani v Mariconte [2018] HCA 36; (2018) 359 ALR 31 Re DG and the Adoption Act 2000 [2007] NSWCA 241; (2007) 244 ALR 195 Richard v Cornford (No. 3) [2010] NSWCA 134 Sali v SPC Ltd (1993) 116 ALR 625 The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 28 Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR (NSW) 239
Category:	Procedural and other rulings
Parties:	Adam McClellan (Applicant) Robert Leslie Horswill (First Respondent) Kim Maree Horswill (Second Respondent) Jennifer Anne McClellan (Third Respondent)
Representation:	Counsel: P R Glissan (Applicant) D C Price (First and Second Respondents) Submitting appearance (Third Respondent) Solicitors: n/a (Applicant) Shaddicks Legal (First and Second Respondents)
File Number(s):	2019/181467
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2019] NSWSC 557 Date of Decision: 16 May 2019 Before: Darke J File Number(s): 2017/290046