Newton v Ellis

[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.