Salon Essentials Pty Ltd ACN 622 352 621 v Hawley International Pty Ltd ACN 099 809 300

[2025] NSWCA 30

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Salon Essentials Pty Ltd ACN 622 352 621 v Hawley International Pty Ltd ACN 099 809 300 [2025] NSWCA 30

Hearing dates:

3 March 2025

Date of orders:

3 March 2025

Decision date:

04 March 2025

Before:

Stern JA

Decision:

(1)   Notice of Appeal filed 31 December 2024 against the orders of Judicial Registrar Howard in the District Court is dismissed as incompetent.

(2)   Salon Essentials Pty Ltd pay Hawley International Pty Ltd’s costs of the motion.

Catchwords:

CIVIL PROCEDURE - Court of Appeal - Objections to competency of appeal – Appeal purportedly brought as of right from interlocutory decision – Appeal dismissed as incompetent

Legislation Cited:

District Court Act 1973 (NSW), s 127(2)(a)

Supreme Court Act 1970 (NSW), ss 46(1)(b), 48(2)(f), 51

Cases Cited:

Fokas v Mansfield (No 3) [2017] NSWCA 315

Independent Audit Services Pty Ltd v Elite Aquatic School Pty Ltd [2024] NSWSC 279

Macatangay v State of New South Wales (No 2) [2009] NSWCA 272

Nand v Fuji Xerox Australia Pty Ltd [2014] NSWCA 294

Ranclose Investments Pty Ltd v Leda Management Services Pty Ltd [2022] NSWCA 206

Category:

Principal judgment

Parties:

Salon Essentials Pty Ltd ACN 622 352 621 (Appellant/Respondent to Notice of Motion)
Hawley International Pty Ltd ACN 099 809 300 (Respondent/Applicant)

Representation:

Counsel:
Kieron Dowd (Director, Salon Essentials Pty Ltd)
Sarah A McCarthy (Respondent/Applicant)

Solicitors:
Moray & Agnew (Respondent/Applicant)

File Number(s):

2024/485187

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Civil

Date of Decision:

5 December 2024

Before:

Judicial Registrar Howard

File Number(s):

2024/22624

JUDGMENT

1. By orders of 3 March 2025, this Court made the following orders:

1. Notice of Appeal filed 31 December 2024 against the orders of Judicial Registrar Howard in the District Court is dismissed as incompetent.

2. Salon Essentials Pty Ltd pay Hawley International Pty Ltd’s costs of the motion.

2. These are the reasons for making those orders.

Background

3. The underlying proceedings, commenced in the District Court of New South Wales by Salon Essentials Pty Ltd (Salon Essentials) against Hawley International Pty Ltd (Hawley International), involved an alleged breach of contract in respect of the sale of Salon Essentials’ business to Hawley International claiming total relief of $122,672.25.

4. By orders made on 5 December 2024, Judicial Registrar Howard dismissed the proceedings under Uniform Civil Procedure Rules, r 42.21(3), on account of the failure of Salon Essentials to comply with an order made by Catsanos DCJ on 28 August 2024 that it provide security for costs in the sum of $20,000 (the 5 December 2024 Orders). Initially, security for costs was to be provided by 9 October 2024. By orders of 6 November 2024, Judicial Registrar Howard extended the date for compliance to 15 November 2024, but also made clear that the proceedings may be dismissed in the event of non-compliance.

5. By further orders of 22 November 2024, Judicial Registrar Howard again extended the time for compliance, this time until 29 November 2024, and ordered that the proceedings would be dismissed in the event of non-compliance. Salon Essentials did not comply with the order to provide security for costs leading to the 5 December 2024 Orders.

6. On 31 December 2024, Salon Essentials filed a Notice of Appeal against the 5 December 2024 Orders. The Notice of Appeal stated that it was brought “under Uniform Civil Procedure Rules” and that it was not filed pursuant to leave to appeal.

7. By letter of 11 January 2025 to Salon Essentials, Moray & Agnew, the solicitors for Hawley International, explained that leave to appeal was required as the 5 December 2024 Orders were interlocutory. Moray & Agnew also explained in that letter that they held instructions to apply to dismiss the Notice of Appeal as incompetent if Salon Essentials did not agree to withdraw the Notice of Appeal. There was no substantive response to that letter.

8. By notice of motion filed on 14 January 2025, Hawley International sought to have that Notice of Appeal dismissed as incompetent. It did so because, it said, Salon Essentials required the leave of this Court, under s 127(2)(a) of the District Court Act 1973 (NSW), in order to appeal against the 5 December 2024 Orders because those orders are interlocutory in nature. Hawley International also contended that the appeal should have been brought in the Common Law Division of the Supreme Court of New South Wales, rather than in the Court of Appeal.

9. Hawley International’s motion was originally listed for hearing on 10 February 2025. That hearing was adjourned. By email from the Registrar, Court of Appeal, to the parties on 4 February 2025, the Registrar observed:

“I have considered the Notice of Appeal filed 31 December 2024. I note that, in the circumstances, an appeal does not lie as of right.”

10. Notwithstanding this, and that Hawley International filed submissions on 28 February 2025 clearly setting out that Salon Essentials required leave to appeal to the Supreme Court of New South Wales, Salon Essentials did not file a summons seeking leave to appeal.

11. On 28 February 2025, Salon Essentials also filed submissions opposing the motion. Those submissions did not address the competency of the Notice of Appeal. They went solely to the merits of the appeal. However, absent a competent appeal, those matters could not properly be considered by this Court.

12. Hawley International’s motion was heard on 3 March 2025.

Determination

13. As Hawley International contended, the 5 December 2024 Orders dismissing the proceedings for non-compliance with an order that security for costs be provided are interlocutory: Ranclose Investments Pty Ltd v Leda Management Services Pty Ltd [2022] NSWCA 206 at [10] (Mitchelmore JA, Brereton JA agreeing). This is because an order of that nature is not final in legal effect as it does not finally determine the rights of the parties or create res judicata estoppels: Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 (“Macatangay”) at [11] (Allsop P, Tobias JA and Handley AJA).

14. It necessarily follows that, as Hawley International submitted, Salon Essentials can only appeal with leave: District Court Act, s 127(2)(a). The appeal was thus incompetent and the Notice of Appeal was dismissed. I have power to make such order having regard to the terms of s 46(1)(b) of the Supreme Court Act 1970 (NSW), as was confirmed in Macatangay at [15] and more recently in Fokas v Mansfield (No 3) [2017] NSWCA 315 at [24].

15. Neither the orders of 3 March 2025, nor this judgment, would of themselves prevent Salon Essentials, if it so wishes, bringing an application for an extension of time for seeking leave to appeal: see Nand v Fuji Xerox Australia Pty Ltd [2014] NSWCA 294 at [6] (Leeming JA). The merits of any such application, including having regard to the history of the proceedings to date, would then be a matter for the Court.

16. As Hawley International submitted, any appeal against the 5 December 2024 Orders should have been to the Common Law Division of the Supreme Court, rather than to the Court of Appeal. Section 48(2)(f) of the Supreme Court Act provides that an appeal from the District Court or a Judge of the District Court, but not from a Judicial Registrar of that Court, lies to the Court of Appeal: see also Independent Audit Services Pty Ltd v Elite Aquatic School Pty Ltd [2024] NSWSC 279 at [2]-[5] (Ball J). However, that matter did not go to the competency of the appeal having regard to the terms of s 51 of the Supreme Court Act.

Conclusion

17. Given the dismissal of the Notice of Appeal, it was appropriate that Salon Essentials should pay Hawley International’s costs of the application on the standard basis. The history of the proceedings is not, at this stage, such as to warrant an order that costs be paid on an indemnity basis.

18. The reasons set out above explain the basis for the Court’s orders on 3 March 2025.

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Decision last updated: 04 March 2025