Mulligan v Westpac - [2016] NSWCA 273

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Mulligan v Westpac [2016] NSWCA 273
Hearing dates: 27 September 2016
Date of orders: 30 September 2016
Decision date: 30 September 2016
Before: Meagher JA at [1]; Payne JA at [11]; Schmidt J at [80]
Decision:
(1) Leave to appeal refused;
(2) The applicants pay the respondents’ costs as agreed or assessed.

Catchwords: PRACTICE AND PROCEDURE – court made orders for preparation and service of evidence in chief – respondents filed evidence referring to incorrect agreement – respondents discovered error prior to trial – whether primary judge erred in permitting respondents to tender agreement served late – whether the applicants suffered prejudice – whether primary judge erred in refusing to adjourn proceedings – whether primary judge erred in reserving the question of costs
Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth) ss 12GF, 12GM
Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 59, 60, 61, 98
Supreme Court Act 1970 (NSW) s 101
Uniform Civil Procedure Rules 2005 (NSW) r 42.7
Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Cornelius v Global Medical Solutions Australia Pty Ltd; Farag v Global Medical Solutions Australia Pty Ltd [2014] NSWCA 65
Crowley v Glissan (1905) 2 CLR 402
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22
House v The King (1936) 55 CLR 499
In the Will of Gilbert (1946) 46 SR (NSW) 318
Kelly v Westpac Banking Corporation [2014] NSWCA 348
Singh v Newridge Property Group Pty Ltd [2010] NSWSC 411
Category: Principal judgment
Parties:
Katherine Mulligan (first applicant)
Richard Mulligan (second applicant)
Westpac Banking Corporation (first respondent)
St George Finance Limited (second respondent)
Representation:
Counsel:
E Chrysostomou (applicants)
J White / D Habashy (respondents)
Solicitors:
Applicants self-represented
Gadens Lawyers (respondents)

File Number(s): 2016/256023
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

2-4 August 2016

Before:

Gibb DCJ

File Number(s):

2014/209951; 2015/110215

Headnote

(This headnote is not to be read as part of the judgment.)

The applicants, Mr and Mrs Mulligan, are defendants in proceedings in the District Court of NSW brought by the second respondent, St George Finance Limited (SGF). SGF claims judgment against each applicant on the basis of loan agreements that were entered into between the applicants and AMG Capital Pty Limited (AMG Capital). AMG Capital assigned its rights under the loan agreements to SGF. On 10 July 2015 SGF filed evidence referring to the agreement purportedly effecting that assignment. However, the document referred to in the evidence filed was an agreement between SGF and AMG Corporate Pty Ltd, not AMG Capital.

On 24 November 2015 Olsson DCJ judge made orders for the preparation and service of SGF’s evidence in chief. After the expiry of the period allowed by…

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 Mulligan v Westpac

Details

AGLC: Mulligan v Westpac [2016] NSWCA 273
Case: [2016] NSWCA 273
Decision Date: 30 September 2016

CaseChat Overview and Summary

Mulligan and others (the applicants) brought proceedings against Westpac Banking Corporation (the respondents). The dispute concerned the respondents' filing of evidence that referred to an incorrect agreement. The respondents discovered this error before trial and sought to tender the correct agreement late. The applicants argued that this late tender and the primary judge's decision to permit it, along with the refusal to grant an adjournment, caused them prejudice. The applicants also challenged the primary judge's decision to reserve the question of costs.

The Court of Appeal was required to determine whether the primary judge erred in permitting the respondents to tender the correct agreement after the deadline for filing evidence in chief. This involved considering whether the applicants suffered prejudice as a result of the late filing and the primary judge's decision. Furthermore, the court had to assess whether the primary judge erred in refusing to grant an adjournment of the proceedings and in reserving the question of costs.

The Court of Appeal found no error in the primary judge's decision. The court reasoned that the primary judge had properly exercised their discretion in allowing the late tender of the correct agreement, having considered the potential prejudice to the applicants and finding it to be manageable. The refusal to grant an adjournment was also upheld, as the primary judge had adequately addressed the applicants' concerns regarding the late evidence. The decision to reserve costs was also deemed appropriate in the circumstances.

Leave to appeal was refused, and the applicants were ordered to pay the respondents’ costs as agreed or assessed.

Orders

Orders of the court

(1) Leave to appeal refused;

(2) The applicants pay the respondents’ costs as agreed or assessed.

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.

Medium Neutral Citation:	Mulligan v Westpac [2016] NSWCA 273
Hearing dates:	27 September 2016
Date of orders:	30 September 2016
Decision date:	30 September 2016
Before:	Meagher JA at [1]; Payne JA at [11]; Schmidt J at [80]
Decision:	(1) Leave to appeal refused; (2) The applicants pay the respondents’ costs as agreed or assessed.
Catchwords:	PRACTICE AND PROCEDURE – court made orders for preparation and service of evidence in chief – respondents filed evidence referring to incorrect agreement – respondents discovered error prior to trial – whether primary judge erred in permitting respondents to tender agreement served late – whether the applicants suffered prejudice – whether primary judge erred in refusing to adjourn proceedings – whether primary judge erred in reserving the question of costs
Legislation Cited:	Australian Securities and Investments Commission Act 2001 (Cth) ss 12GF, 12GM Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 59, 60, 61, 98 Supreme Court Act 1970 (NSW) s 101 Uniform Civil Procedure Rules 2005 (NSW) r 42.7
Cases Cited:	Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Cornelius v Global Medical Solutions Australia Pty Ltd; Farag v Global Medical Solutions Australia Pty Ltd [2014] NSWCA 65 Crowley v Glissan (1905) 2 CLR 402 Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 House v The King (1936) 55 CLR 499 In the Will of Gilbert (1946) 46 SR (NSW) 318 Kelly v Westpac Banking Corporation [2014] NSWCA 348 Singh v Newridge Property Group Pty Ltd [2010] NSWSC 411
Category:	Principal judgment
Parties:	Katherine Mulligan (first applicant) Richard Mulligan (second applicant) Westpac Banking Corporation (first respondent) St George Finance Limited (second respondent)
Representation:	Counsel: E Chrysostomou (applicants) J White / D Habashy (respondents) Solicitors: Applicants self-represented Gadens Lawyers (respondents)
File Number(s):	2016/256023
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 2-4 August 2016 Before: Gibb DCJ File Number(s): 2014/209951; 2015/110215