Menzies v CRCI Pty Ltd - [2007] NSWCA 118

New South Wales

Court of Appeal

CITATION: Menzies & Anor. v. CRCI Pty. Limited [2007] NSWCA 118

HEARING DATE(S): 2 May 2007

JUDGMENT OF: Hodgson JA at 1; Tobias JA at 37; Basten JA at 38

EX TEMPORE JUDGMENT DATE: 2 May 2007

DECISION: Application for leave to appeal refused with costs.

CATCHWORDS: PROCEDURE - Amendment - Application for leave to file a cross-claim out of time - Discretionary considerations - Adjournment to file further evidence, made at hearing - Whether appealable error shown.

CASES CITED: Abacus Property Developments v Huang [2007] NSWSC 47
CIBC Australia v Parkston (1995) 18 ACSR 429
Clifton v Gerlach Bricks Pty Limited (2002) 209 CLR 478
Frugtniet v State Bank of New South Wales [1999] NSWCA 458
House v The King (1936) 55 CLR 499
Sali v SPC Limited (1993) 67 ALJR 841
State of Queensland v JL Holdings Pty Limited (1997) 189 CLR 146
Wardley Australia Limited v Western Australia (1992) 175 CLR 514

PARTIES: Ian David Menzies - 1st claimant
Colleen Anne Menzies - 2nd claimant
CRCI Pty. Limited - Opponent

FILE NUMBER(S): CA 40475/06

COUNSEL: Mr. B.L. Jones for claimants
Mr. R. de Mayrick for opponent

SOLICITORS: Jacksom Smith Lawyers, Sydney for claimants
Carswell & Company, Maryborough, Qld. for opponent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC51/04

LOWER COURT JUDICIAL OFFICER: Christie DCJ, Donovan DCJ

LOWER COURT DATE OF DECISION: 25 July 2006 (Christie DCJ), 3 August 2006 and 17 October 2006 (Donovan DCJ)

CA 40475/06

HODGSON JA
TOBIAS JA
BASTEN JA

Wednesday 2 May 2007

MENZIES & ANOR. V. CRCI PTY. LIMITED

Judgment

1 HODGSON JA: On 25 July 2006, Christie DCJ dismissed an application by the claimants to file a cross-claim in proceedings in which the opponent had sued the claimants for amounts alleged to be due pursuant to a mortgage given by the claimants to the opponent.

2 On 2 August 2006, the claimants filed a summons for leave to appeal from that decision.

3 On 3 August, the claimants, by their counsel, applied for a stay of proceedings pending determination of the application for leave to appeal, and also applied for an adjournment of the hearing of the opponent’s claim. Donovan DCJ refused those applications and proceeded to hear the case.

4 On 4 August, Donovan DCJ gave a decision in the case in favour of the opponent for $67,943.01 plus interest. The interest was subsequently determined at $13,016.99 and a judgment was given for $80,960. It appears that that judgment may have been actually made on 17 October 2006. On that day, Donovan DCJ also made an order with respect to the costs of the proceedings.

5 The claimants seek leave to appeal from the judgments of 25 July 2006, 3 August 2006 and 17 October 2006. The application for leave has been heard on the basis that if leave is granted, the appeal will be disposed of without further argument.

6 The dispute underlying the proceedings arises from dealings commencing in 1995…

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.

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Details

Case: [2007] NSWCA 118
Decision Date: 2 May 2007

CaseChat Overview and Summary

The applicants, Menzies, sought leave to appeal a decision of the primary judge concerning an application to file a cross-claim out of time against the respondent, CRCI Pty Ltd. The dispute arose in the context of proceedings where Menzies sought to amend its defence and file a cross-claim against CRCI.

The central legal issue before the Court of Appeal was whether the primary judge erred in exercising their discretion by refusing leave to file the cross-claim out of time. This involved considering whether the primary judge had regard to all relevant discretionary considerations and whether any error in that regard amounted to an appealable error.

The Court of Appeal found no appealable error in the primary judge's decision. The primary judge had considered the relevant factors, including the delay in seeking to file the cross-claim, the potential prejudice to the respondent, and the merits of the proposed cross-claim. The Court noted that the primary judge had adjourned the hearing to allow Menzies to file further evidence, demonstrating a willingness to consider the application fully. However, Menzies failed to provide sufficient evidence to persuade the primary judge to exercise discretion in their favour.

Consequently, the application for leave to appeal was refused with costs.

Orders

Orders of the court

Application for leave to appeal refused with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Menzies & Anor. v. CRCI Pty. Limited [2007] NSWCA 118
HEARING DATE(S):	2 May 2007
JUDGMENT OF:	Hodgson JA at 1; Tobias JA at 37; Basten JA at 38
EX TEMPORE JUDGMENT DATE:	2 May 2007
DECISION:	Application for leave to appeal refused with costs.
CATCHWORDS:	PROCEDURE - Amendment - Application for leave to file a cross-claim out of time - Discretionary considerations - Adjournment to file further evidence, made at hearing - Whether appealable error shown.
CASES CITED:	Abacus Property Developments v Huang [2007] NSWSC 47 CIBC Australia v Parkston (1995) 18 ACSR 429 Clifton v Gerlach Bricks Pty Limited (2002) 209 CLR 478 Frugtniet v State Bank of New South Wales [1999] NSWCA 458 House v The King (1936) 55 CLR 499 Sali v SPC Limited (1993) 67 ALJR 841 State of Queensland v JL Holdings Pty Limited (1997) 189 CLR 146 Wardley Australia Limited v Western Australia (1992) 175 CLR 514
PARTIES:	Ian David Menzies - 1st claimant Colleen Anne Menzies - 2nd claimant CRCI Pty. Limited - Opponent
FILE NUMBER(S):	CA 40475/06
COUNSEL:	Mr. B.L. Jones for claimants Mr. R. de Mayrick for opponent
SOLICITORS:	Jacksom Smith Lawyers, Sydney for claimants Carswell & Company, Maryborough, Qld. for opponent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC51/04
LOWER COURT JUDICIAL OFFICER:	Christie DCJ, Donovan DCJ
LOWER COURT DATE OF DECISION:	25 July 2006 (Christie DCJ), 3 August 2006 and 17 October 2006 (Donovan DCJ)