(2) The applicant pay the respondent's costs of the summons.
[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:
APPEAL - leave to appeal - r 36.15(1) Uniform Civil Procedure Rules - Farm Debt Mediation Act 1994 - where complaint directed at enforcement of Consent Order
David George Sharpe (Applicant) Christopher John Heywood (Respondent)
Representation:
Counsel: Mr G Boskovitz (sol) (Applicant) Mr R Mulquiney (sol) (Respondent) Solicitors: Boskovitz & Associates (Applicant) Coastal Law & Conveyancing Pty Ltd (Respondent)
File Number(s):
CA 2013/84147
Decision under appeal
Jurisdiction:
9101
Citation:
Heywood v Sharpe
Date of Decision:
2013-03-15 00:00:00
Before:
Neilsen DCJ
File Number(s):
DC 2011/297491
Judgment
BARRETT JA: I will ask Gleeson JA to give the first judgment.
GLEESON JA: This is an application by Mr Sharpe, the defendant in the Court below, for leave to appeal against a decision of Neilsen DCJ, dismissing Mr Sharpe's notice of motion seeking to set aside the judgment entered in the proceedings below, in favour of Mr Heywood, the plaintiff.
In his draft notice of appeal Mr Sharpe relies on two appeal grounds. First, that the primary judge erred in not exercising his discretion under Uniform Civil Procedure Rules r 36.15(1) to set aside the judgement below on the grounds that the judgment was entered irregularly, illegally or against good faith. Secondly, that the primary judge erred in not considering Mr Sharpe's submissions that the enforcement action taken by Mr Heywood (namely, the entry of judgment that was sought to be set aside) was void pursuant to s 6 of the Farm Debt Mediation Act1994 (the Act).
The entry of judgment on 6 June 2011 was pursuant to a Consent Order made on 6 June 2011 following the settlement of the proceedings below between Mr Sharpe and Mr Heywood. Those proceedings concerned a dispute…
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
AGLC
Sharpe v Heywood [2013] NSWCA 192
Case
[2013] NSWCA 192
Decision Date
CaseChat Overview and Summary
Sharpe (the applicant) sought leave to appeal against a decision concerning the enforcement of a consent order. The dispute arose from the applicant's complaint directed at the respondent's actions in enforcing this consent order. The matter came before the Court of Appeal of New South Wales, constituted by Barrett and Gleeson JJA.
The primary legal issue before the Court of Appeal was whether leave to appeal should be granted under rule 36.15(1) of the Uniform Civil Procedure Rules 2005. This rule governs the setting aside and variation of judgments or orders, and the applicant's challenge was framed within this context, relating to the enforcement of a consent order, potentially implicating the principles of the Farm Debt Mediation Act 1994.
The Court of Appeal dismissed the summons for leave to appeal. While the specific reasoning for this dismissal is not detailed in the provided text, the outcome indicates that the applicant failed to satisfy the criteria for granting leave to appeal under the relevant rules. Consequently, the applicant was ordered to pay the respondent's costs of the summons.
Orders
Orders of the court
(1) The summons for leave to appeal be dismissed.
(2) The applicant pay the respondent's costs of the summons.
[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.]