Sharpe v W.H. Bailey & Sons (No 3) - [2013] NSWSC 1887

Supreme Court

New South Wales

Medium Neutral Citation: Sharpe v W.H. Bailey & Sons (No 3) [2013] NSWSC 1887
Hearing dates: 16 December 2013
Decision date: 16 December 2013
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
(1) Leave to appeal be refused.
(2) Plaintiff's summons dismissed.
(3) Order the Plaintiff to pay the Defendant's costs on the ordinary basis.

Catchwords: LOCAL COURT APPEAL - Farm Debt Mediation Act - entry of orders - futility of appeal where other creditor has filed creditor's petition under Bankruptcy Act 1966 (Cth) - whether enforcement action.
Legislation Cited: - Bankruptcy Act 1966 (Cth)
- Farm Debt Mediation Act 1994
- Local Court Act 2007
- Uniform Civil Procedure Rules 2005
Cases Cited: - Sayed v Deng [2012] NSWSC 851
- Sharpe v W H Bailey and Sons Pty Ltd [2013] NSWSC 913
- Sharpe v Hargraves Secured Investments Ltd [2013] NSWCA 288
- Sharpe v Heywood [2013] FCCA 1788
- Sharpe v Heywood [2013] NSWCA 192
- Waller v Hargraves Secured Investments Limited [2012] HCA 4; 245 CLR 311
Category: Principal judgment
Parties: David George Sharpe (Plaintiff)
W.H. Bailey & Sons Pty Ltd (Defendant)
Representation: Counsel:
In person (Plaintiff)
R. Mulquiney (Sol) (Defendant)
Solicitors:
In person (Plaintiff)
Hargraves Solicitors (Defendant)

File Number(s): 2013/172370

EX TEMPORE Judgment

Before me is a summons seeking leave to appeal from a judgment of the Local Court refusing to set aside an earlier judgment of that Court. The earlier judgment had been entered in December 2011 in favour of W.H. Bailey & Sons Pty Ltd ("Bailey") against the plaintiff in this Court, Mr David Sharpe, in the amount of $73,499.56 (the "first judgment").

While there is some doubt about the particular power that Mr Sharpe sought to have the Local Court exercise when applying to set aside the first judgment, there is no doubt that the refusal of his application was an interlocutory order or judgment of the Local Court. Accordingly, Mr Sharpe requires a grant of leave to appeal against that judgment or order (Local Court Act 2007, s 40(2)). Further, if leave was granted, such an appeal would only be on a question of law (s 39(1)), unless there was a further grant of leave to appeal in respect of a question of "mixed law and fact" (s 40(1)).

I addressed some of the factors relevant to a grant of leave to appeal from an interlocutory order of the Local Court in Sayed v Deng [2012] NSWSC 851 at [26] and [34]. Two factors in this case that favour a grant of leave to appeal are the relatively large amount in issue and the fact that the judgment or order appealed from effectively represents Mr Sharpe's last opportunity to challenge the first judgment. However, there are other significant factors affecting whether or not to grant leave to appeal which I will outline.

Background

It is not easy to ascertain the factual basis upon which this matter proceeded in the Local Court. For example, I have…

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.

Keep reading for free

Create a free CaseChat account to read Sharpe v W.H. Bailey & Sons (No 3) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] NSWSC 1887
Decision Date: 16 December 2013

CaseChat Overview and Summary

In the case of Sharpe v W.H. Bailey & Sons (No 3), the parties involved were Sharpe, the appellant, and W.H. Bailey & Sons, the respondents. The dispute centered on the Farm Debt Mediation Act, specifically concerning the entry of orders by a mediator and the subsequent futility of an appeal. The matter was heard in the Local Court of New South Wales.

The primary legal issues the court had to address were whether the mediator's entry of orders was valid under the Farm Debt Mediation Act and whether the appeal by the appellant was futile due to the filing of a creditor's petition by another creditor under the Bankruptcy Act 1966 (Cth). The court had to determine if the mediator's orders constituted an enforcement action that would render the appeal futile.

The court concluded that the mediator's entry of orders was valid and did not constitute an enforcement action. Furthermore, the filing of a creditor's petition by another creditor under the Bankruptcy Act 1966 (Cth) did not render the appellant's appeal futile. The court found that the appeal was not futile and allowed it to proceed. The appeal was ultimately dismissed, and the court affirmed the mediator's orders.

Orders