McHugh v Eastern Star Gas Ltd (No 2) - [2012] NSWCA 419

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: McHugh & Anor v Eastern Star Gas Ltd & Ors (No 2) [2012] NSWCA 419
Hearing dates: 22 May 2012
Decision date: 14 December 2012
Before: Bathurst CJ at [1]; Macfarlan JA at [16]
Decision:
1 The applicants file a Notice of Appeal within 7 days of the making of these orders.
2 The cross-application is dismissed.
3 Eastern Star Gas Ltd is to pay the costs of the cross-respondents of the cross-application.
4 Order (vii) of the orders made by R S Hulme J on 3 June 2011 be set aside.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: PROCEDURE - entry of judgments and orders - application to set aside or vary orders - UCPR r 36.17.
Legislation Cited: Supreme Court Act 1970 s 45AA
Uniform Civil Procedure Rules 2005 r 36.17
Category: Consequential orders
Parties: Michael Robert McHugh (First Applicant/1st Cross Respondent)
ACN 109 532 630 Pty Ltd (Second Applicant/2nd Cross Respondent)
Eastern Star Gas Ltd (First Respondent/Cross Applicant)
Ronald Von Harten (Second Respondent)
Dean Von Harten (Third Respondent)
Steven Charles Grammer (Fourth Respondent/3rd Cross Respondent
Representation: A.P. Cheshire, A. Kaufmann (Applicants/ 1st & 2nd Cross Respondents)
R.C. Scruby (First, Second & Third Respondents/Cross Applicant)
HWL Ebsworths (Applicants/ 1st & 2nd Cross Respondents)
Piper Alderman (First, Second & Third Respondents/Cross Applicant)

File Number(s): 2010/039033
Publication restriction: No
Decision under appeal

Jurisdiction:

9111

Citation:

[2011] NSWSC 513

Date of Decision:

2011-06-03 00:00:00

Before:

R S Hulme J

File Number(s):

2010/039033

Judgment

BATHURST CJ: The primary judgment in this matter was delivered by the Court on 8 June 2012.

The proceedings, in broad terms, concerned a claim that in purporting to act for a company, Namoi Valley Aquafarming Pty Ltd ("NVAF") in proceedings in the Mining Warden's Court against the first respondent, Eastern Star Gas Ltd, the applicants were acting without retainer and as a consequence were liable to pay the costs incurred by Eastern Star Gas and two of the directors of NVAF, Mr Dean Von Harten and Mr Ronald Von Harten, in connection with the Mining Warden's Court proceedings.

R S Hulme J found in favour of Eastern Star Gas and the Von Hartens. The applicants sought leave to appeal and leave was granted and the appeal upheld. Whealy JA, with whom Macfarlan JA and I agreed, found that Mr McHugh was retained throughout the proceedings. His reasoning was summarised in par [93] of his judgment, to the following effect:

"[93] In any event, I have come to the conclusion that there is nothing in the circumstances of the present matter that would warrant taking…

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 McHugh v Eastern Star Gas Ltd (No 2)

Details

AGLC: McHugh v Eastern Star Gas Ltd (No 2) [2012] NSWCA 419
Case: [2012] NSWCA 419
Decision Date: 14 December 2012

CaseChat Overview and Summary

McHugh and others (the applicants) sought to set aside or vary an order made by Hulme J on 3 June 2011, which had been entered pursuant to Rule 36.11 of the Uniform Civil Procedure Rules 2005 (NSW). Eastern Star Gas Ltd was the respondent to the application. The proceedings were heard in the Court of Appeal of New South Wales by Bathurst CJ and Macfarlan JA.

The primary legal issue before the Court of Appeal was whether it had the power to set aside or vary the order of Hulme J, and if so, whether it should exercise that power. This involved considering the scope of Rule 36.17 of the Uniform Civil Procedure Rules 2005, which governs the setting aside and variation of judgments and orders, and the principles applicable to such applications, including the time limits prescribed by Rule 36.16.

The Court of Appeal determined that it possessed the power to set aside the order of Hulme J. It reasoned that the order of Hulme J was made in circumstances where the applicants had not been afforded a proper opportunity to be heard on the substantive issues. Consequently, the Court found that it was appropriate to exercise its discretion to set aside that order. The Court also dismissed a cross-application brought by Eastern Star Gas Ltd and ordered that Eastern Star Gas Ltd pay the costs of the cross-respondents in relation to that cross-application. The applicants were granted leave to file a Notice of Appeal within seven days of the making of the Court's orders.

Orders

Orders of the court

1 The applicants file a Notice of Appeal within 7 days of the making of these orders.

2 The cross-application is dismissed.

3 Eastern Star Gas Ltd is to pay the costs of the cross-respondents of the cross-application.

4 Order (vii) of the orders made by R S Hulme J on 3 June 2011 be set aside.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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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Medium Neutral Citation:	McHugh & Anor v Eastern Star Gas Ltd & Ors (No 2) [2012] NSWCA 419
Hearing dates:	22 May 2012
Decision date:	14 December 2012
Before:	Bathurst CJ at [1]; Macfarlan JA at [16]
Decision:	1 The applicants file a Notice of Appeal within 7 days of the making of these orders. 2 The cross-application is dismissed. 3 Eastern Star Gas Ltd is to pay the costs of the cross-respondents of the cross-application. 4 Order (vii) of the orders made by R S Hulme J on 3 June 2011 be set aside. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	PROCEDURE - entry of judgments and orders - application to set aside or vary orders - UCPR r 36.17.
Legislation Cited:	Supreme Court Act 1970 s 45AA Uniform Civil Procedure Rules 2005 r 36.17
Category:	Consequential orders
Parties:	Michael Robert McHugh (First Applicant/1st Cross Respondent) ACN 109 532 630 Pty Ltd (Second Applicant/2nd Cross Respondent) Eastern Star Gas Ltd (First Respondent/Cross Applicant) Ronald Von Harten (Second Respondent) Dean Von Harten (Third Respondent) Steven Charles Grammer (Fourth Respondent/3rd Cross Respondent
Representation:	A.P. Cheshire, A. Kaufmann (Applicants/ 1st & 2nd Cross Respondents) R.C. Scruby (First, Second & Third Respondents/Cross Applicant) HWL Ebsworths (Applicants/ 1st & 2nd Cross Respondents) Piper Alderman (First, Second & Third Respondents/Cross Applicant)
File Number(s):	2010/039033
Publication restriction:	No
Decision under appeal	Jurisdiction: 9111 Citation: [2011] NSWSC 513 Date of Decision: 2011-06-03 00:00:00 Before: R S Hulme J File Number(s): 2010/039033