Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Nemeth v Australian Litigation Funders Pty Ltd [2014] NSWCA 198 Hearing dates: 13 December 2013 Decision date: 24 June 2014 Before: Meagher JA at [1];
Gleeson JA at [2];
Leeming JA at [224]Decision: (1) Appeal dismissed.
(2) Appellant to pay the respondents' costs.
[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: APPEAL AND NEW TRIAL - Appeal - Interference with primary judge's findings of fact - Finding by primary judge that contract not unjust - Functions of appellate court - Appellate review to accord with principles for an appeal by way of rehearing - Appellate court able to determine whether contract was unjust based on proper inferences to be drawn from established facts - Principles in Fox v Percy and House v The King apply - Whether primary judge's findings were inconsistent with incontrovertible facts or uncontested testimony, or were glaringly improbable or contrary to compelling inferences
CONTRACTS - General contractual principles - Harsh and unconscionable contracts and statutory remedies - Contracts Review Act 1980 s 7 - Unjust contracts - Whether the funding agreement was substantially unjust - Whether the contract was merely a "risk free loan", offensive to community standards, or improvident
JUDICIAL REVIEW - Grounds of review - Procedural fairness - Hearing rule - Nature of Hearing - Whether appellant was denied the opportunity to make submissions - Whether primary judge made findings that were not open on the evidence nor pleaded by either partyLegislation Cited: Contracts Review Act 1980 (NSW) ss 4, 7, 9
Corporations Act 2001 (Cth) ss 206F, 597
Trade Practices Act 1974 (Cth) ss 51AB, 51AACases Cited: Aboody v Ryan [2012] NSWCA 395
Adamson v Ede [2009] NSWCA 379
Bibby Financial Services Australia Pty Ltd v Sharma [2014] NSWCA 37
Carnemolla v Adelaide Bank [2013] NSWCA 122
Conley v Commonwealth Bank of Australia [2000] NSWCA 101
Coulton v Holcombe [1986] HCA 33; 162 CLR 1
Elkofairi v Permanent Trustee Co Ltd [2002] NSWCA 413
Esanda Finance Corporation Ltd v Tong (1997) 41 NSWLR 482
Fox v Percy [2003] HCA 22; 214 CLR 118
House v The King [1936] HCA 40; 55 CLR 499
Kowalczuk v Accom Finance Pty Ltd [2008] NSWCA 343
Metwally v University of Wollongong (No 2) [1985] HCA 28; 60 ALR 68
Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41; 14 BPR 26,639
Provident Capital Ltd v Papa [2013] NSWCA 36; 84 NSWLR 231
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1
St George Commercial Credit…
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- Case
- [2014] NSWCA 198
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether the primary judge erred in finding that the litigation funding agreement was not unjust. This involved considering whether the primary judge's findings of fact were inconsistent with incontrovertible facts, uncontested testimony, or compelling inferences, and whether the contract was offensive to community standards, improvident, or akin to a "risk-free loan". The Court also considered whether Ms. Nemeth was denied procedural fairness by not being afforded an opportunity to make submissions on findings made by the primary judge that were not pleaded by either party.
The Court of Appeal applied the principles governing appeals by way of rehearing, as established in cases such as *Fox v Percy* and *House v The King*. It held that an appellate court is able to determine whether a contract is unjust based on proper inferences drawn from established facts. The Court found that the primary judge's findings were not demonstrably wrong and that Ms. Nemeth had not been denied procedural fairness.
The appeal was dismissed, and Ms. Nemeth was ordered to pay the respondents' costs.
Orders
Orders of the court
(1) Appeal dismissed.
(2) Appellant to pay the respondents' costs.
[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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