Basten JA at 1; Campbell JA at 2; Sackville AJA at 3.
Decision:
The appeal is dismissed with costs.
[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:
PRACTICE AND PROCEDURE - motion to adduce further evidence on appeal - whether primary judgment given after a "trial or hearing on the merits" within s 75A(8) of the Supreme Court Act 1970 - whether an interlocutory judgment is necessarily given without a trial or hearing on the merits - whether special grounds shown to receive further evidence - whether discretion to receive further evidence under s 75A(7) of the Supreme Court Act 1970 should be exercised in favour of the appellant.
AGENCY - solicitor and client - moneys borrowed by husband and wife - both sued by lenders - wife gives instructions to solicitor on her own behalf and on behalf of her husband - whether primary Judge correctly found that the solicitor was authorised to execute terms of settlement on behalf of the husband.
[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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AGLC
Romeo v Papalia [2012] NSWCA 221
Case
[2012] NSWCA 221
Decision Date
CaseChat Overview and Summary
In *Romeo v Papalia*, the New South Wales Court of Appeal considered an appeal concerning the authority of a solicitor to execute terms of settlement on behalf of a husband, where the wife had provided instructions to the solicitor on behalf of both herself and her husband. The dispute arose from moneys borrowed by the husband and wife, who were both sued by lenders. The primary judgment had found that the solicitor was indeed authorised to act for the husband.
The Court of Appeal was required to determine whether the primary judgment was given after a "trial or hearing on the merits" for the purposes of section 75A(8) of the *Supreme Court Act 1970* (NSW), and whether an interlocutory judgment was necessarily given without such a hearing. Further, the Court had to consider whether special grounds were shown to receive further evidence on appeal, and if the discretion to receive further evidence under section 75A(7) of the *Supreme Court Act 1970* should be exercised in favour of the appellant.
The Court reasoned that the primary judgment was given after a hearing on the merits, as it involved the determination of the solicitor's authority to settle the proceedings on behalf of the husband. The Court found no basis to conclude that an interlocutory judgment is inherently not a judgment given after a hearing on the merits. Consequently, the Court held that the conditions for adducing further evidence under section 75A(8) were not met, and there were no special grounds to exercise the discretion under section 75A(7).
The appeal was dismissed with costs.
Orders
Orders of the court
The appeal is dismissed with costs.
[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.]