Ng v Filmlock Pty Ltd (No 2) - [2015] NSWCA 59

Court of Appeal
Supreme Court

New South Wales

Case Name:	Ng v Filmlock Pty Ltd (No 2)
Medium Neutral Citation:	[2015] NSWCA 59
Hearing Date(s):	On the papers
Date of Orders:	19 March 2015
Decision Date:	19 March 2015
Before:	Emmett JA; Gleeson JA, Tobias AJA
Decision:	(1) Order (3) made on 13 November 2014 be varied to read as follows: “(3) The matter be remitted to Pembroke J for a new trial on the question of the quantum of damages to which the Vendors are entitled, including any application that a party may wish to make to adduce evidence as to the value of the land the subject of the deed of option entered into on 21 November 2005.” (2) The notice of motion filed on 26 November 2014 be otherwise dismissed. (3) The applicants on the motion pay the respondent’s costs of the motion.
Catchwords:	PROCEDURE – judgments and orders – motion to set aside orders – whether a substantial wrong or miscarriage was occasioned by the primary judge’s error – whether, therefore, the necessary precondition to the Court’s original order providing for limited remitter was satisfied – Uniform Civil Procedure Rules 2005 (NSW), r 51.53
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 51.53
Cases Cited:	Banque Commerciale SA (en liquidation) v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279
Category:	Procedural and other rulings
Parties:	Samuel Ng (First Applicant) Nissi Investments Pty Ltd (ACN 112 933 436) (Second Applicant) Filmlock Pty Ltd (ACN 054 610 052) (First Respondent) Jakesam Developments Pty Ltd (in liq) (ACN 061 154 729) (Second Respondent) Pearse Property Group Pty Ltd (ACN 086 946 849) (Third Respondent) JGT Investments Pty Ltd (in liq) (ACN 111 076 398) (Fourth Respondent)
Representation:	Counsel: Mr BA Coles QC with Mr OR Jones (Applicants) Ms L Chan (Respondents) Solicitors: Carneys Lawyers (Applicants) PJ Donnellan & Co (Respondents)
File Number(s):	2013/266475
Publication Restriction:	Nil
Decision under appeal:
Court or Tribunal:	NSW Court of Appeal
Citation:	[2014] NSWCA 389
Date of Decision:	13 November 2014
Before:	Emmett JA; Gleeson JA; Tobias AJA
File Number(s):	2013/266475

[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.]

JUDGMENT

THE COURT: By notice of motion filed on 26 November 2014, the applicants have asked the Court to reconsider the orders made by it on 13 November 2014 in an appeal brought by the applicants. Those orders were made for reasons published by the Court on that day. Terms used in these reasons have the same meaning as when used in the reasons of 13 November 2014 (the principal reasons).
The appeal by the applicants arose out of…

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.

Keep reading for free

Create a free CaseChat account to read Ng v Filmlock Pty Ltd (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] NSWCA 59
Decision Date: 19 March 2015

CaseChat Overview and Summary

The applicants, Ng and others, sought to set aside orders made by the primary judge in proceedings against the respondent, Filmlock Pty Ltd. The dispute concerned the quantum of damages to which the vendors were entitled. The matter came before the Court of Appeal of New South Wales, constituted by Emmett and Gleeson JJA and Tobias AJA.

The central legal issue before the Court of Appeal was whether a substantial wrong or miscarriage of justice had been occasioned by the primary judge's error. This determination was crucial for establishing whether the necessary precondition to the Court's original order, which provided for a limited remitter, had been satisfied under rule 51.53 of the Uniform Civil Procedure Rules 2005 (NSW).

The Court found that the primary judge's error did occasion a substantial wrong or miscarriage. Consequently, the Court varied its previous order of 13 November 2014. The variation stipulated that the matter be remitted to Pembroke J for a new trial specifically on the question of the quantum of damages payable to the vendors. This new trial would also allow for any applications by the parties to adduce evidence regarding the value of the land subject to the deed of option entered into on 21 November 2005. The applicants' notice of motion was otherwise dismissed, and they were ordered to pay the respondent's costs of the motion.

Orders

Orders of the court

(1) Order (3) made on 13 November 2014 be varied to read as follows:

“(3) The matter be remitted to Pembroke J for a new trial on the question of the quantum of damages to which the Vendors are entitled, including any application that a party may wish to make to adduce evidence as to the value of the land the subject of the deed of option entered into on 21 November 2005.”

(2) The notice of motion filed on 26 November 2014 be otherwise dismissed.

(3) The applicants on the motion pay the respondent’s costs of the motion.

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.