Penrith Whitewater Stadium Ltd v Lesvos Enterprises Pty Ltd

Case [2007] NSWCA 131

NEW SOUTH WALES COURT OF APPEAL

CITATION:      PENRITH WHITEWATER STADIUM LTD v LESVOS ENTERPRISES PTY LTD [2007]  NSWCA 131
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
40199/07

HEARING DATE(S):            28 May 2007

EX TEMPORE DATE:        28 May 2007

PARTIES:
Penrith Whitewater Stadium Ltd – First Appellant
Penrith City Council – Second Appellant
Lesvos Enterprises Pty Ltd – First Respondent
Koffee Pty Ltd – Second Respondent

JUDGMENT OF:      Basten JA     

LOWER COURT JURISDICTION: Court of Appeal

LOWER COURT FILE NUMBER(S):        

LOWER COURT JUDICIAL OFFICER:     Registrar Schell

COUNSEL:
M.S. Jacobs QC/P.J. Bambagiotti – Appellants
A. Street SC/D. Price – Respondents

SOLICITORS:
Gadens Lawyers, Sydney – Appellants
Andresakis & Associates, Parramatta – Respondents

CATCHWORDS:
APPEAL - from Registrar, Court of Appeal - application to set aside order of the Registrar striking out a notice of contention - power of single judge of appeal to review decision of Registrar - Supreme Court Act 1970 (NSW) ss 42, 46 - Uniform Civil Procedure Rules, Part 49, Div 4 - Supreme Court Rules, Prt 61
PROCEDURE - notice of cross-appeal not required when no variation of order sought
PROCEDURE - notice of contention - striking out notice - delay in filing and service - challenge to findings of trial judge

LEGISLATION CITED:
Civil Procedure Act 2005 (NSW), s 135, Schedule 6, cl 9
Constitution, s 73
Supreme Court Act 1970 (NSW), ss 42, 46
Supreme Court Rules 1970 (NSW), Part 51, rr 18, 21, 58, Part 61, r4
Trade Practices Act 1974 (Cth), ss 51AA, 52, 82
Uniform Civil Procedure Rules, r 12.8, Part 49, Div 4

CASES CITED:
Driclad Pty Ltd v Federal Commissioner of Taxation (1966-68) 121 CLR 45
Emmett v Hornsby Shire Council [2002] NSWCA 75
Queensland v JL Holdings Pty Ltd (1996-97) 189 CLR 146
Wentworth v Graham (2002) 55 NSWLR 638

DECISION:
(1)  Appellants to file written submission in reply responding to the contentions relied upon by the respondents in their written submissions, by 15 June 2007
(2)  The parties be prepared to argue the matters raised by the notice of contention at the hearing of the appeal on 5 and 6 July 2007
(3)  The costs of the motion be costs in the appeal.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40199/07

BASTEN JA

28 May 2007

PENRITH WHITEWATER STADIUM & ANOR v LESVOS PTY LTD & ANOR

Judgment

  1. HIS HONOUR:  This matter involves an application to set aside an order of the Registrar pursuant to which he struck out a notice of contention filed by the respondent in these proceedings.  There is no record before me of his reasons for taking that step.  The notice of contention was out of time and involved a number of grounds, ten in all, of which different complaints were made in relation to different grounds.

    Jurisdiction

  2. The first question I need to consider is the extent to which I have power, sitting alone,…

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Details
AGLC
Penrith Whitewater Stadium Ltd v Lesvos Enterprises Pty Ltd [2007] NSWCA 131
Case
[2007] NSWCA 131
Decision Date

CaseChat Overview and Summary

This matter came before Basten JA of the Court of Appeal of New South Wales concerning an application to set aside an order of the Registrar that struck out a notice of contention. The dispute arose from the filing and service of this notice, which challenged findings of the trial judge, and the subsequent delay in its lodgement.

The primary legal issue before the Court was whether a single judge of the Court of Appeal possessed the power to review and set aside an order made by the Registrar striking out a notice of contention. Ancillary to this was the question of whether, if such power existed, the notice of contention should be permitted to stand, notwithstanding the delay in its filing and service, to allow for the agitation of substantive issues that might provide an alternative basis for upholding the trial judge's orders.

Basten JA considered the relevant provisions of the *Supreme Court Act 1970* (NSW) and the Uniform Civil Procedure Rules. While expressing the view that he lacked the power to set aside the Registrar's order, his Honour indicated that if he had possessed such power, he would have exercised it to allow the notice of contention to stand. This approach was informed by the principle that substantive issues litigated below, which could support the trial judge's decision, should be permitted to be raised on appeal, citing *Queensland v JL Holdings Pty Ltd*. The Court determined that permitting the notice to stand would not cause undue prejudice and that the parties should be prepared to argue the matters raised by the notice of contention at the hearing of the appeal.

Consequently, Basten JA directed that the appellants file written submissions in reply responding to the contentions relied upon by the respondents, by 15 June 2007, and that the parties be prepared to argue the matters raised by the notice of contention at the appeal hearing on 5 and 6 July 2007. The costs of the motion were ordered to be costs in the appeal.

Orders

Orders of the court

(1) Appellants to file written submission in reply responding to the contentions relied upon by the respondents in their written submissions, by 15 June 2007;

(2) The parties be prepared to argue the matters raised by the notice of contention at the hearing of the appeal on 5 and 6 July 2007;

(3) The costs of the motion be costs in the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

What seems clear is that there would be no undue prejudice in permitting the notice of contention to stand and to allow the appellants an opportunity to respond to the contents of the submissions in support in due course, as they undoubtedly will do. No doubt, if the notice of contention did not stand, they would be relieved of that burden, but in my view, if there are issues of substance raised by the notice of contention, as there appear to be, which go to matters litigated below and which might provide an alternative basis for upholding the orders made by the trial judge, those matters should be allowed to be agitated on the appeal. The proper way to do that would be to allow the notice of contention to be relied upon: cf Queensland v JL Holdings Pty Ltd (1996-97) 189 CLR 146 at 154.Conclusions The effect of that would be to extend the date within which the notice of contention was to be filed from 4 May until 15 May. I would have directed that the date by which the notice was to be filed and served be so extended, so that the notice of contention would have been filed within the time permitted by the directions of the Court. If, for that purpose, it were necessary to set aside the order of the Registrar of 21 May, striking out the notice of contention and I had power to do so, I would do so. On the basis that I lack that power, the matter will have to be dealt with by the Court on the hearing of the appeal on 5 and 6 July 2007. To that end, I would direct that the appellants file written submissions in reply by 15 June, in accordance with the timetable, which submissions should respond to the contentions and the arguments raised by the respondents in their written submissions. I would also direct that both parties be ready to deal with each of the matters raised in the notice of contention at the hearing of the appeal.Costs That disposes of the substantial matter in dispute. There is a question then as to the appropriate order as to the costs of the motion today. In a sense, on the approach I have adopted, the respondents have been successful in relation to the matters raised, but it is said that they have sought an indulgence, and therefore the appellants should either obtain the costs of the motion in any event, or, as a fallback position, the costs should be the appellants’ costs of the appeal. The respondent says that the costs should be costs in the appeal. In my view, if I had power to make appropriate orders to give effect to the views expressed above, and on the basis that the matter should properly have been dealt with in the ordinary course of events by responding to the notice of contention after the written submissions had been received, the prejudice would have been minor. The expense which has been incurred on both sides by the applications, first to the Registrar and now a single judge, is no doubt unfortunate. In the result, and assuming that I had the relevant power, I would direct that the costs of the motion be costs in the appeal. I will make that order, and if there is a different view taken about my powers by the Court hearing the appeal, that orders can, of course, be made or varied at the discretion of that Court.

Ratio Decidendi

Legal Principle Established

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