Pegela Pty Ltd v Oates (No 2) - [2010] NSWCA 292

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Pegela Pty Ltd v Oates (No 2) [2010] NSWCA 292

FILE NUMBER(S):
2009/298568

HEARING DATE(S):
27 April 2010

JUDGMENT DATE:
8 November 2010

PARTIES:
Pegela Pty Limited (First Appellant)
Garrick Hawkins (Second Appellant)
Tom Michael Oates (First Respondent)
Paul Oates (Second Respondent)

JUDGMENT OF:
Allsop P McColl JA Young JA

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 5539/07

LOWER COURT JUDICIAL OFFICER:
Rolfe DCJ

LOWER COURT DATE OF DECISION:
13 November 2009

LOWER COURT MEDIUM NEUTRAL CITATION:
Garrick Hawkins v Tom Oates [2009] NSWDC 258

COUNSEL:
M L Williams SC, J Darams (Appellants)
A W Street SC, J Hewitt (Respondents)

SOLICITORS:
Eakin McCaffery Cox Solicitors (Appellants)
Thompson Eslick Solicitors (Respondents)

CATCHWORDS:
PROCEDURE – judgments and orders – application to vary orders – no question of principle – application to vary orders refused

LEGISLATION CITED:
Uniform Civil Procedure Rules 2005, rr 36.11, 36.16 (3A), 36.17

CATEGORY:
Consequential orders

CASES CITED:
Pegela Pty Ltd v Oates [2010] NSWCA 186

TEXTS CITED:

DECISION:
Notice of motion dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

2009/298568
ALLSOP P
McCOLL JA
YOUNG JA
Monday 8 November 2010

PEGELA PTY LTD v OATES (NO 2)

Judgment

THE COURT: On 9 August 2010, this Court allowed an appeal from the District Court in these proceedings. It set aside the judgment below and found a verdict for the appellants for $91,000 plus interest. (Pegela Pty Ltd v Oates [2010] NSWCA 186).
On 23 August 2010, within 14 days of the orders being made, the respondents filed a notice of motion seeking to vary the amount of the verdict from $91,000 plus interest to $59,406.66 plus interest.
The motion was supported by affidavit material and written submissions. An affidavit and written submissions were filed in response by the appellants.
The appellants opposed the proposed variation. The matter proceeded on the papers.
Meanwhile, on 15 September 2010, a paper copy of the orders was sealed and entered. It is unnecessary to consider the relationship of the operation of the Uniform Civil Procedure Rules2005 (“UCPR”) in relation to electronic entry and the sealing of a hard copy. (See generally UCPR, r 36.11.) The respondents made application within 14 days of the pronouncement of orders for the variation of the orders, which on any basis satisfied UCPR, r 36.16 (3A). No submission was put that the Court had no authority to deal with the matter.
In their submissions, the respondents sought also an order varying the manner in which the costs below should be paid. The appellants took the position that that matter was outside the terms of the orders sought in the notice of motion.
We agree that the cost matters were raised too late. They should have been raised at the hearing. We are not prepared to entertain them now.
As to the reduction of the judgment sum, the appellants do not dispute the ability 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.

Continue reading Pegela Pty Ltd v Oates (No 2)

Details

AGLC: Pegela Pty Ltd v Oates (No 2) [2010] NSWCA 292
Case: [2010] NSWCA 292
Decision Date: 8 November 2010

CaseChat Overview and Summary

Pegela Pty Ltd (the applicant) sought to vary orders previously made by the Court of Appeal of New South Wales in a proceeding against Oates (the respondent). The application to vary the orders was brought on notice of motion.

The central legal issue before the Court was whether the applicant had established grounds to justify a variation of the existing orders. Specifically, the Court had to determine if the application raised any question of principle that warranted reconsideration of its prior decision.

The Court of Appeal, comprising Allsop P, McColl and Young JJA, found that the application did not present any question of principle. Consequently, the Court dismissed the notice of motion. The applicant was ordered to pay the respondent's costs.

Orders

Orders of the court

Notice of motion dismissed with costs.

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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