Newton v Ellis

Case [2012] NSWCA 106


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Newton v Ellis [2012] NSWCA 106
Hearing dates:21 March 2012
Decision date: 27 April 2012
Before: Beazley JA at [1]
Macfarlan JA at [2]
Whealy JA at [36]
Decision:

The appeal is dismissed with 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: PROCEDURE - refusal of adjournment applications - no adequate explanation for late applications to vacate hearing dates - whether necessary in such circumstances to consider likelihood of prejudice to applicant or precise impact on the Court's efficient operation - appellate reluctance to interfere with judicial discretion in matters of practice and procedure
Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; 148 CLR 170
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175
Cellulose Products Pty Ltd v Truda (1970) 92 WN (NSW) 561
Langford Concrete Pty Ltd v Finlay [1978] 1 NSWLR 14
Commonwealth Development Bank of Australia Ltd v Windermere Pastoral Co Pty Ltd [1999] NSWSC 518
Covino v Bandag Manufacturing Pty Ltd [1983] 1 NSWLR 237
Hamod v State of New South Wales [2011] NSWCA 375
House v The King [1936] HCA 40; 55 CLR 499
In re the Will of F B Gilbert (dec) (1946) 46 SR (NSW) 318
State of Queensland v JL Holdings Pty Ltd [1997] HCA 1; 189 CLR 146
Sali v SPC Ltd [1993] HCA 47; 67 ALJR 841
Category:Principal judgment
Parties: Richard Newton (First Appellant)
Robyn Newton (Second Appellant)
Daniel Ellis (Respondent)
Representation: Counsel:
J Raine (First Appellant)
B Levet (Second Appellant)
A Stafford (Respondent)
Solicitors:
Kinghan & Associates (First Appellant)
Ronayne Lawyers (Second Appellant)
Constantine G Pavlis & Co (Respondent)
File Number(s):CA 2008/279436
 Decision under appeal 
Jurisdiction:
9111
Citation:
Ellis v Newton [2011] NSWSC 117
Date of Decision:
2011-02-25 00:00:00
Before:
Rein J
File Number(s):
SC 2008/279436; 2009/288200

Judgment

  1. BEAZLEY JA: I agree with Macfarlan JA.

  1. MACFARLAN JA: These proceedings relate to a lease by Mr Daniel Ellis, the present respondent, of premises in Balmain to Stafford Moore & Farrington Pty Ltd ("the Company"). Mr Richard Newton, the first appellant and a director of the Company, guaranteed the Company's performance of its obligations under the lease. Mr Newton and his wife, Ms Robyn Newton (the second appellant), gave an unregistered mortgage over a property at Gladesville to secure Mr Newton's performance of his obligations as guarantor. After rent fell into arrears, Mr Ellis sued Mr Newton for the amount outstanding and sought orders against the appellants to facilitate enforcement of the mortgage.

Continue reading Newton v Ellis

Sign in free to access the full text

Details
AGLC
Newton v Ellis [2012] NSWCA 106
Case
[2012] NSWCA 106
Decision Date

CaseChat Overview and Summary

In *Newton v Ellis*, the New South Wales Court of Appeal considered an appeal concerning the refusal of adjournment applications. The dispute arose from the trial judge's decision to proceed with a hearing despite applications to vacate the hearing dates, which the applicants argued were made without adequate explanation.

The primary legal issue before the Court of Appeal was whether, in circumstances where adjournment applications are made late and without adequate explanation, it is necessary for the court to consider the likelihood of prejudice to the applicant or the precise impact on the court's efficient operation. The Court also had to determine the extent to which appellate courts should interfere with a judge's discretion in matters of practice and procedure.

The Court of Appeal affirmed the principle that appellate courts are generally reluctant to interfere with a judge's exercise of discretion in relation to practice and procedure. It was held that the trial judge was entitled to refuse the adjournment applications given the lack of adequate explanation for their lateness. The Court found no error in the trial judge's approach, which did not require a detailed assessment of prejudice or operational impact in the face of such deficient applications.

Consequently, the appeal was dismissed with costs.

Orders

Orders of the court

The appeal is dismissed with 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

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.