Secure Funding Pty Ltd v Stark; Secure Funding Pty Ltd v Conway

[2014] NSWCA 151

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Secure Funding Pty Ltd v Stark; Secure Funding Pty Ltd v Conway [2014] NSWCA 151

Hearing dates:

On the papers

Decision date:

15 May 2014

Before:

Beazley P

Decision:

1. Remit the following proceedings to the Common Law Division of the Supreme Court:

(i) Secure Funding Pty Ltd v Stark 2013/380356;

(ii) Secure Funding Pty Ltd v Conway 2013/380358.

2. The respondents' costs thrown away by the commencement of proceedings in the Court of Appeal to be the respondents' costs on the appeal in the Common Law Division.

[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 - Appeal from a decision of Associate Judge - Interlocutory decision - Uniform Civil Procedure Rules, r 49.4 - Where proceedings wrongly instituted in Court of Appeal - Remitter to Division of the Supreme Court - Supreme Court Act 1970, s 51(2)

PROCEDURE - Costs - Proceedings wrongly instituted in Court of Appeal

Legislation Cited:

Supreme Court Act 1970
Supreme Court Rules 1970
Uniform Civil Procedure Rules 2005

Category:

Interlocutory applications

Parties:

CA 2013/380356
Secure Funding Pty Ltd (Applicant)
Jennifer Gloria Stark and John Charles Stark (Respondents)

CA 2013/380358
Secure Funding Pty Ltd (Applicant)
Rex Anthony Conway (Respondent)

Representation:

Solicitors:
Arnold Bloch Leibler (Appellant)

File Number(s):

CA 2013/380356; 2013/380358

 Decision under appeal 

Jurisdiction:

9111

Citation:

Secure Funding Pty Ltd v Stark; Secure Funding Pty Ltd v Conway [2013] NSWSC 1729

Date of Decision:

2013-11-28 00:00:00

Before:

Harrison AsJ

File Number(s):

2012/266739; 2013/62391

Judgment

1. HER HONOUR: On 24 February 2014, the applicant, Secure Funding Pty Ltd, filed a summons seeking leave to appeal from the decision of Harrison AsJ given on 28 November 2013, in which her Honour ordered, relevantly, that default judgment entered against the respondents on 20 February 2013 be set aside. The decision was interlocutory.

1. For the reasons explained below, the summons was wrongly instituted in the Court of Appeal and should be remitted to the Common Law Division.

1. There are different modes of review of or challenge to a decision of an associate judge. The Supreme Court Act 1970, s 118(3) provides that a judgment given or an order made by a divisional associate judge in any Division may be set aside or varied by the Court. "Court" is defined in s 19 to mean the Supreme Court of New South Wales. No application has been made in the present case for a judge in the Division to exercise the power conferred by s 118(3).

1. Section 49 provides that proceedings in the Court which are not assigned to the Court of Appeal are assigned to the Divisions of the Court.

1. The Supreme Court Act, s 101 makes provision for appeals to the Court of Appeal from any judgment or order of the Court in a Division. The order made by the associate judge constituted an order of the court in the Common Law Division: Supreme Court Act, s 118. Section 104 provides, relevantly, that subject to the rules of Court, an appeal shall not lie to the Court of Appeal from a judgment or order of an associate judge.

1. The Uniform Civil Procedure Rules 2005 (UCPR), r 49.4 provides that an appeal lies to the Supreme Court from any decision of an associate judge of the Supreme Court, except in any case where an appeal lies to the Court of Appeal. The appeal is instituted by filing a notice of motion: UCPR, r 49.8. UCPR, r 49.9 specifies the content of the notice of motion. The Supreme Court Rules 1970, Pt 60, Div 4, r 17 specifies those decisions of an associate judge to which an appeal lies to the Court of Appeal. An interlocutory decision is not included in the list of specified decisions where an appeal lies to the Court of Appeal.

1. Therefore, the appeal in the present matter should have been brought in the Common Law Division of the Supreme Court.

1. Pursuant to the Supreme Court Act, s 51(2), where proceedings are commenced in the Court of Appeal but are assigned to a Division of the Supreme Court, the Court may, either on application of either party or of its own motion, remit the matter to the appropriate Division. Subject to any such direction, the proceedings may continue and be disposed of in the Court of Appeal: s 51(2)(d).

1. The decision of the associate judge in the present case was a routine decision on a matter of practice and procedure and is one that is appropriate for determination by a judge of the Supreme Court. Accordingly, the matter should be remitted to the Common Law Division for determination. I propose to make an order to that effect.

1. The fact that this matter ought to have been commenced in the Common Law Division was noticed by this Court in a routine administrative listing review. At that time, the matter had been listed for hearing on 21 August 2014 by way of a concurrent hearing of the summons for leave to appeal and, if leave be granted, the appeal.

1. When it was ascertained that the appeal from the associate judge's decision should have been commenced in the Common Law Division, the Registrar of the Court of Appeal advised the parties that the Court proposed to make an order under s 51(2)(b) of the Supreme Court Act, but gave the parties an opportunity to raise any matter they considered appropriate or necessary to bring to the Court's attention before such an order was made. The applicant did not oppose the proceedings being remitted to the Common Law Division. The respondents have consented to the remitter.

1. The respondents have sought an order for the costs thrown away as a result of the matter having been wrongly commenced in the Court of Appeal. The costs said to have been thrown away relate to the preparation and filing of submissions in response to the summons for leave to appeal. The respondents have contended that their submissions were in opposition to the grant of leave rather than to the appeal proper. They pointed out that leave to appeal is not required for an appeal from an associate judge to a judge in a Division so that the submissions prepared on the leave question are redundant.

1. In my opinion, all parties bear some responsibility for the present position. The applicant ought to have brought the appeal in the Common Law Division of the Supreme Court. For their part, the respondents ought to have been astute to bring that to the attention of the applicant and/or the Court. Had that been done at the commencement of the proceedings in this Court, the costs now said to have been thrown away would not have been incurred. At the most, there would have been minimal costs incurred in engaging in correspondence with the applicant and in the possibility of an appearance before the registrar.

1. Although I consider that both the applicant and the respondents bear responsibility for the present position, the applicant was the commencing party and should have ensured that the appeal was correctly brought. In the circumstances, I consider that the appropriate order is that the respondents' costs thrown away by the bringing of the appeal in the Court of Appeal should be the respondents' costs on the appeal in the Common Law Division.

1. The orders I make, therefore, are:

1. Remit the following proceedings to the Common Law Division of the Supreme Court:

(i) Secure Funding Pty Ltd v Stark 2013/380356;

(ii) Secure Funding Pty Ltd v Conway 2013/380358.

2. The respondents' costs thrown away by the commencement of proceedings in the Court of Appeal to be the respondents' costs on the appeal in the Common Law Division.

**********

Amendments

14 July 2014 - First sentence deleted.

Amended paragraphs: 4

Decision last updated: 14 July 2014