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Olsen v Mentink

Olsen v Mentink

Case [2019] NSWCA 279 18 November 2019

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Olsen v Mentink [2019] NSWCA 279
Hearing dates: 14 November 2019
Decision date: 18 November 2019
Before: Leeming JA
Decision:
1. Dismiss paragraph 1 of the summons filed 5 November 2019, with costs.
2. Stand over the balance of the summons into the Registrar’s list on Monday 3 February 2020, to be treated as a notice of motion for expedition in the event that an appeal has been filed.
Catchwords: APPEALS – time for appeal – notice of intention to appeal filed and served – successful defendant sought orders limiting time within which appeal could be commenced – whether Court of Appeal had jurisdiction and power to make such an order – whether such an order should be made – application refused
Legislation Cited: Civil Procedure Act 2005 (NSW), s 14
Supreme Court Act 1970 (NSW), ss 46, 48, 101
Supreme Court Rules, Pt 51 rr 4, 6
Uniform Civil Procedure Rules, rr 1.12, 51.1, 51.2, 51.6, 51.7, 51.8, 51.9, 51.16, 51.37, 51.41
Cases Cited: Commonwealth v Bank of New South Wales [1950] AC 235
Dillon v Boland; Dillon v Cush [2012] NSWCA 364
El-Hanania v Vella [2019] NSWCA 167
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22
Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279
Kalache v Local Court of New South Wales (No 2) [2017] NSWSC 1736
Kounnas v Citywide Civil Engineering Pty Ltd [2012] NSWCA 287
McGinn v Cranbrook School [2016] NSWCA 226
Moubarak by his tutor Coorey v Holt (No 2) [2019] NSWCA 188
Olsen v Mentink [2019] NSWSC 1299
Texts Cited: New South Wales Civil Procedure Handbook 2019 (Thomson Reuters 2019)
Category: Procedural and other rulings
Parties: John Henry Olsen (Plaintiff)
Karen Howard Mentink (Defendant)
Representation:
Counsel:
J Brown and N Condylis (Plaintiff)
R Wilson SC (Defendant)
Solicitors:
ClickLaw (Plaintiff)
Bedson Legal (Defendant)

File Number(s): 2019/347455
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity - Expedition List

Citation:

[2019] NSWSC 1299

Date of Decision:

27 September 2019

Before:

Sackar J

File Number(s):

2019/118366

Judgment

LEEMING JA: The issues in this application are simply stated. Can a respondent to a putative appeal shorten the three month period within which any appeal is to be brought, a notice of intention to appeal having been filed and served? Is so, then should such an order be made?
Mr John Olsen is the successful plaintiff, potentially the respondent to any appeal, and the moving party on a summons filed in the Court of Appeal which was referred to me by the Registrar. Mr Olsen has succeeded in obtaining judgment following a six day hearing in late July and late August in the Expedition List, for reasons of some 381 paragraphs delivered on 27 September 2019: Olsen v Mentink [2019] NSWSC 1299. Orders were made on 25 October 2019. Those orders entered judgment against…

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 Olsen v Mentink

Details

AGLC: Olsen v Mentink [2019] NSWCA 279
Case: [2019] NSWCA 279
Decision Date: 18 November 2019

CaseChat Overview and Summary

In *Olsen v Mentink*, the unsuccessful plaintiff, Olsen, had filed a notice of intention to appeal against a decision of the Supreme Court of New South Wales. The successful defendant, Mentink, sought orders from the Court of Appeal limiting the time within which Olsen could formally commence his appeal.

The central legal issue before the Court of Appeal was whether it possessed the jurisdiction and power to make an order limiting the time for the filing of an appeal, and if so, whether such an order should be made in the circumstances of this case.

Leeming JA considered the relevant rules of court and the inherent jurisdiction of the Court of Appeal. His Honour concluded that while the Court of Appeal had the power to manage its own process and ensure the efficient administration of justice, it did not have the power to abridge the statutory time limits for filing an appeal, nor could it impose a condition on the filing of an appeal that was not prescribed by the rules. The application was therefore refused.

The Court dismissed the first paragraph of the summons filed by the defendant, with costs. The balance of the summons was stood over to be treated as a notice of motion for expedition, should an appeal be filed.

Orders

Orders of the court

1. Dismiss paragraph 1 of the summons filed 5 November 2019, with costs.

2. Stand over the balance of the summons into the Registrar’s list on Monday 3 February 2020, to be treated as a notice of motion for expedition in the event that an appeal has been filed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Olsen v Mentink [2019] NSWCA 279

Most Recent Citation

Sayer-Jones v The King [2024] NSWCCA 183

Cases citing this decision · 4 of 4 shown

Sayer-Jones v The King
[2024] NSWCCA 183 Para 10

…mon ground, Leeming JA considered that the provisions of Pt 51 of the Uniform Civil Procedure Rules 2005 (NSW) were founded on that premise. 5. [2019] NSWCA 279 at [33], [38]; see also Hussain v Haynoum Developments Pty Ltd [2014] NSWCA 173 at [45] (McColl JA).…
Salmon v Albarran
[2024] NSWCA 3 Para 11

…As Leeming JA observed in Olsen v Mentink [2019] NSWCA 279 at [38]-[40]:…
Zhiva Living Dural Pty Limited v Hornsby Shire Council
[2020] NSWCA 180 Para 44

…f appeal, but needs to seek leave, that litigant’s delay and any explanation for delay will be relevant to the question of leave: Olsen v Mentink [2019] NSWCA 279 at [48]. The Council contended that the reason for the delay in the service of the notice of intention to appeal, and in the filing of the summons seekin…
Randren House Pty Ltd v Water Administration Ministerial Corporation
[2020] NSWCA 14 Para 55

…ee months, by filing and serving a notice of intention to appeal within 28 days (the rules permitting that to occur are summarised in Olsen v Mentink [2019] NSWCA 279 at [5]-[12]). But the appellants did not exercise their right of appeal until August 2019. By that time they were some five months out of time.…

View all 4 citing cases →

Cases cited in this decision · 10 of 10 shown

Olsen v Mentink
[2019] NSWSC 1299 Para 2

…x day hearing in late July and late August in the Expedition List, for reasons of some 381 paragraphs delivered on 27 September 2019: Olsen v Mentink [2019] NSWSC 1299. Orders were made on 25 October 2019. Those orders entered judgment against the defendant, Ms Karen Howard, in the amount of $2,203,328.67 plus inter…
Moubarak by his tutor Coorey v Holt (No 2)
[2019] NSWCA 188 Para 15

…rt of Appeal until the last available day, namely, Dillon v Boland; Dillon v Cush [2012] NSWCA 364 at [9], Moubarak by his tutor Coorey v Holt (No 2) [2019] NSWCA 188 at [27]-[28], El-Hanania v Vella [2019] NSWCA 167 at [42] and Kalache v Local Court of New South Wales (No 2) [2017] NSWSC 1736 at [15].…
El-Hanania v Vella
[2019] NSWCA 167 Para 15

…Dillon v Boland; Dillon v Cush [2012] NSWCA 364 at [9], Moubarak by his tutor Coorey v Holt (No 2) [2019] NSWCA 188 at [27]-[28], El-Hanania v Vella [2019] NSWCA 167 at [42] and Kalache v Local Court of New South Wales (No 2) [2017] NSWSC 1736 at [15].…
Kalache v Local Court of New South Wales (No 2)
[2017] NSWSC 1736 Para 15

…r Coorey v Holt (No 2) [2019] NSWCA 188 at [27]-[28], El-Hanania v Vella [2019] NSWCA 167 at [42] and Kalache v Local Court of New South Wales (No 2) [2017] NSWSC 1736 at [15].…
McGinn v Cranbrook School
[2016] NSWCA 226 Para 60

…and it follows that a single Judge of Appeal has power to dismiss such a notice of appeal: Supreme Court Act , s 46(1)(b); McGinn v Cranbrook School [2016] NSWCA 226 at [9] and [40]. I am presently of the view that a single Judge of Appeal has power to dismiss the novel summons filed by Mr Olsen.…
Dillon v Boland; Dillon v Cush
[2012] NSWCA 364 Para 15

…n expressed for litigants failing to commence proceedings in the Court of Appeal until the last available day, namely, Dillon v Boland; Dillon v Cush [2012] NSWCA 364 at [9], Moubarak by his tutor Coorey v Holt (No 2) [2019] NSWCA 188 at [27]-[28], El-Hanania v Vella [2019] NSWCA 167 at [42] and Kalache v Local Cou…
Kounnas v Citywide Civil Engineering Pty Ltd
[2012] NSWCA 287 Para 48

…ractitioners after all “have a responsibility to take a proper note of proceedings”: see for example Kounnas v Citywide Civil Engineering Pty Ltd [2012] NSWCA 287 at [14]. Further, El-Hanania was a case where the time limits had been exceeded. The final decision on which reliance was placed, Kalache v Local Court o…
Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd
[2011] NSWCA 279 Para 52

…of the court are to be the servant of justice, not its master”: Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279 at [38], and ultimately statute confers power to dispense with their requirements in a particular case pursuant to s 14 of the Civil Procedure Act 2005 (…
Gerlach v Clifton Bricks Pty Ltd
[2002] HCA 22 Para 49

…int after the trial, because the interlocutory decision is material to the final judgment: see Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22. The same is true where an unsuccessful litigant seeks a stay pending appeal. But those discretionary applications are far removed from Mr Olsen’s appl…
[1950] AC 235
[1950] AC 235 Para 41

…arty seeks to have the formal order of the Court set aside or varied in his favour by an appellate court”: Commonwealth v Bank of New South Wales [1950] AC 235 at 294. It strikes me as somewhat circular, to say the least, that a litigant who is not entitled to invoke the jurisdiction of the Court of Appeal to he…

Legislation cited in this decision · 2

Supreme Court Act 1970 (NSW)
101, 46, 48 4 mentions (from Para 5)
Civil Procedure Act 2005 (NSW)
14 2 mentions (from Para 52)

Medium Neutral Citation:	Olsen v Mentink [2019] NSWCA 279
Hearing dates:	14 November 2019
Decision date:	18 November 2019
Before:	Leeming JA
Decision:	1. Dismiss paragraph 1 of the summons filed 5 November 2019, with costs. 2. Stand over the balance of the summons into the Registrar’s list on Monday 3 February 2020, to be treated as a notice of motion for expedition in the event that an appeal has been filed.
Catchwords:	APPEALS – time for appeal – notice of intention to appeal filed and served – successful defendant sought orders limiting time within which appeal could be commenced – whether Court of Appeal had jurisdiction and power to make such an order – whether such an order should be made – application refused
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 14 Supreme Court Act 1970 (NSW), ss 46, 48, 101 Supreme Court Rules, Pt 51 rr 4, 6 Uniform Civil Procedure Rules, rr 1.12, 51.1, 51.2, 51.6, 51.7, 51.8, 51.9, 51.16, 51.37, 51.41
Cases Cited:	Commonwealth v Bank of New South Wales [1950] AC 235 Dillon v Boland; Dillon v Cush [2012] NSWCA 364 El-Hanania v Vella [2019] NSWCA 167 Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279 Kalache v Local Court of New South Wales (No 2) [2017] NSWSC 1736 Kounnas v Citywide Civil Engineering Pty Ltd [2012] NSWCA 287 McGinn v Cranbrook School [2016] NSWCA 226 Moubarak by his tutor Coorey v Holt (No 2) [2019] NSWCA 188 Olsen v Mentink [2019] NSWSC 1299
Texts Cited:	New South Wales Civil Procedure Handbook 2019 (Thomson Reuters 2019)
Category:	Procedural and other rulings
Parties:	John Henry Olsen (Plaintiff) Karen Howard Mentink (Defendant)
Representation:	Counsel: J Brown and N Condylis (Plaintiff) R Wilson SC (Defendant) Solicitors: ClickLaw (Plaintiff) Bedson Legal (Defendant)
File Number(s):	2019/347455
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity - Expedition List Citation: [2019] NSWSC 1299 Date of Decision: 27 September 2019 Before: Sackar J File Number(s): 2019/118366