Prynew Pty Limited v Nemeth - [2011] NSWCA 5

Court of Appeal

New South Wales

Case Title: Prynew Pty Limited v Nemeth

Medium Neutral Citation: [2011] NSWCA 5

Hearing Date(s): 31 January 2011

Decision Date: 31 January 2011

Jurisdiction:

Before:
Allsop P

Decision:
(1) As to the motion brought by the first respondent:
(a) the motion is dismissed, but the respondents to that motion, that is the appellants, pay the costs of the applicant to the motion being the first respondent and the fourth respondent to the proceedings.
(b) The dates for hearing of this appeal of 21 and 22 February are vacated. The appellants pay the costs of the first and fourth respondents to the appeal thrown away by the vacation of the hearing on an indemnity basis, leave being granted to assess such costs forthwith.
2. As to the amended notice of motion brought by the appellants:
(a) grant leave in accordance with prayers 1 and 2 of the motion to amend the existing notice of appeal and the submissions;
(b) the further amended notice of appeal be filed within fourteen days. The orange, blue and black books be filed with the court on or before 28 February 2011.
(c) Order 3 in the notice of motion to adduce fresh evidence is refused.
(d) The appellants, the applicants on the notice of motion, pay the costs of the first and fourth respondents of the motion.
(e) As to the costs of the issues abandoned, as a condition of the grant of leave to amend, order that the appellants pay the costs of the first and fourth respondents of the issues abandoned.
(f) The amended notice of motion is otherwise dismissed and the appeal is to be relisted at the earliest opportunity after the 28 th February, assuming the orders are complied with, for the obtaining of a hearing date at the earliest opportunity.
[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 - Civil - pleadings - application to amend - application to adduce fresh evidence - application under Civil Procedure Act 2005, s 61 for dismissal with costs - dilatory preparation of appeal

COSTS - vacation of hearing date - indemnity costs - abandonment of issues - costs thrown away

Legislation Cited:
Civil Procedure Act 2005

Cases Cited:
Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd [2008] NSWCA 228
House v R [1936] HCA 40; (1936) 55 CLR 499

Texts Cited:

Category: Principal judgment

Parties:
Prynew Pty Limited (First Appellant/First Cross Respondent)
Peter Tsu (Second Appellant/Second Cross Respondent)
Ferdinand Nemeth (First Respondent/Cross Appellant)
Virginia Nemeth (Second Respondent/Third Cross Respondent)
QBE Mercantile Mutual Limited (Third Respondent)
Piling Contractors (Qld) Pty Limited (Third Cross Respondent)

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.

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Details

Case: [2011] NSWCA 5
Decision Date: 31 January 2011

CaseChat Overview and Summary

In the proceedings before Allsop P, Prynew Pty Limited (the appellants) sought to amend their notice of appeal and adduce fresh evidence, while the first respondent (Nemeth) brought a motion seeking dismissal of the appeal with costs due to dilatory preparation. The dispute concerned the appellants' attempts to alter the grounds of their appeal and introduce new evidence late in the process, which the respondents argued prejudiced their case and caused unnecessary delay.

The court was required to determine whether to grant the appellants leave to amend their notice of appeal and submissions, whether to permit the adducing of fresh evidence, and whether to dismiss the appeal or grant the respondents their costs, including indemnity costs, due to the appellants' conduct. Specifically, the court had to consider the principles governing amendments to pleadings and the admission of fresh evidence in an appellate context, as well as the consequences of dilatory conduct and the vacation of hearing dates.

Allsop P granted the appellants leave to amend their notice of appeal and submissions, ordering that the further amended notice of appeal be filed within fourteen days and that the relevant court books be filed by a specified date. However, the application to adduce fresh evidence was refused. The court found that the appellants' conduct warranted significant cost orders against them. The appellants were ordered to pay the costs of the first and fourth respondents in relation to the motion to amend and the issues abandoned as a condition of the grant of leave. Furthermore, the hearing dates for the appeal were vacated, and the appellants were ordered to pay the costs thrown away by this vacation on an indemnity basis. The appeal was to be relisted for a hearing date to be obtained at the earliest opportunity, provided the appellants complied with the orders.

Orders

Orders of the court

(1) As to the motion brought by the first respondent:

(a) the motion is dismissed, but the respondents to that motion, that is the appellants, pay the costs of the applicant to the motion being the first respondent and the fourth respondent to the proceedings.

(b) The dates for hearing of this appeal of 21 and 22 February are vacated. The appellants pay the costs of the first and fourth respondents to the appeal thrown away by the vacation of the hearing on an indemnity basis, leave being granted to assess such costs forthwith.

2. As to the amended notice of motion brought by the appellants:

(a) grant leave in accordance with prayers 1 and 2 of the motion to amend the existing notice of appeal and the submissions;

(b) the further amended notice of appeal be filed within fourteen days. The orange, blue and black books be filed with the court on or before 28 February 2011.

(d) The appellants, the applicants on the notice of motion, pay the costs of the first and fourth respondents of the motion.

(e) As to the costs of the issues abandoned, as a condition of the grant of leave to amend, order that the appellants pay the costs of the first and fourth respondents of the issues abandoned.

(f) The amended notice of motion is otherwise dismissed and the appeal is to be relisted at the earliest opportunity after the 28 th February, assuming the orders are complied with, for the obtaining of a hearing date at the earliest opportunity.

[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.]

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.

Case Title:	Prynew Pty Limited v Nemeth
Medium Neutral Citation:	[2011] NSWCA 5
Hearing Date(s):	31 January 2011
Decision Date:	31 January 2011
Jurisdiction:
Before:	Allsop P
Decision:	(1) As to the motion brought by the first respondent: (a) the motion is dismissed, but the respondents to that motion, that is the appellants, pay the costs of the applicant to the motion being the first respondent and the fourth respondent to the proceedings. (b) The dates for hearing of this appeal of 21 and 22 February are vacated. The appellants pay the costs of the first and fourth respondents to the appeal thrown away by the vacation of the hearing on an indemnity basis, leave being granted to assess such costs forthwith. 2. As to the amended notice of motion brought by the appellants: (a) grant leave in accordance with prayers 1 and 2 of the motion to amend the existing notice of appeal and the submissions; (b) the further amended notice of appeal be filed within fourteen days. The orange, blue and black books be filed with the court on or before 28 February 2011. (c) Order 3 in the notice of motion to adduce fresh evidence is refused. (d) The appellants, the applicants on the notice of motion, pay the costs of the first and fourth respondents of the motion. (e) As to the costs of the issues abandoned, as a condition of the grant of leave to amend, order that the appellants pay the costs of the first and fourth respondents of the issues abandoned. (f) The amended notice of motion is otherwise dismissed and the appeal is to be relisted at the earliest opportunity after the 28 th February, assuming the orders are complied with, for the obtaining of a hearing date at the earliest opportunity. [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 - Civil - pleadings - application to amend - application to adduce fresh evidence - application under Civil Procedure Act 2005, s 61 for dismissal with costs - dilatory preparation of appeal COSTS - vacation of hearing date - indemnity costs - abandonment of issues - costs thrown away
Legislation Cited:	Civil Procedure Act 2005
Cases Cited:	Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd [2008] NSWCA 228 House v R [1936] HCA 40; (1936) 55 CLR 499
Texts Cited:
Category:	Principal judgment
Parties:	Prynew Pty Limited (First Appellant/First Cross Respondent) Peter Tsu (Second Appellant/Second Cross Respondent) Ferdinand Nemeth (First Respondent/Cross Appellant) Virginia Nemeth (Second Respondent/Third Cross Respondent) QBE Mercantile Mutual Limited (Third Respondent) Piling Contractors (Qld) Pty Limited (Third Cross Respondent)