Success 618 Pty Ltd v New Zealand Natural Pty Ltd

[2016] SASCFC 10

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

SUCCESS 618 PTY LTD v NEW ZEALAND NATURAL PTY LTD

[2016] SASCFC 10

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice S Doyle)

24 February 2016

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FURTHER EVIDENCE - IN GENERAL

PROCEDURE - COSTS - SECURITY FOR COSTS

Appeal to the Full Court of the Supreme Court against the dismissal of an appeal by a single Judge of this Court.

On 10 June 2015, a Master of the Supreme Court ordered that Success 618 Pty Ltd, the appellant, provide security for costs in the amount of $65,000 and that the action be stayed pending the provision of the security.

Success 618 Pty Ltd appealed this decision to the Honourable Justice Peek, who held that it was not established that the Master erred in the exercise of his discretion, and dismissed the appeal.

The appellant appeals on grounds including that Justice Peek failed to consider certain affidavit material which he had refused to admit as further evidence on the hearing of the appeal.

Held:

1.       The grounds of appeal do not identify an error in the appellate review conducted by the Honourable Justice Peek.

2.       Permission to appeal is refused.

SUCCESS 618 PTY LTD v NEW ZEALAND NATURAL PTY LTD
[2016] SASCFC 10

Full Court:  Kourakis CJ, Stanley and Doyle JJ

1. THE COURT:   The appellant, the plaintiff, seeks permission to appeal the dismissal of an appeal against the decision of a Master of this Court, Judge Dart, to order that it provide security for costs in the sum of $65,000.00. 

2. The respondent, the defendant, was the franchisor of a business that operated out of premises leased by the respondent from a third party landlord.  The plaintiff’s claim is that the defendant settled a dispute with the landlord over a rental review at an excessively high amount and in breach of a duty it owed the appellant.

3. We would refuse permission to appeal.  The proposed grounds of appeal do not identify an error in the appellate review conducted by Peek J but instead merely seek to agitate arguments put before him. 

4. Grounds one and two complain that Peek J failed to consider certain affidavit material bearing on the contents of “Affidavit 39” filed on 6 July 2015 which Peek J refused to admit as further evidence on the hearing of the appeal.  The decision of Peek J not to admit the affidavit in the exercise of his discretion is not attended by an apparent error.  Nor is there any reason to think that Peek J did not consider all of the material before him.  In any event, the material goes to the prospects of success of the appellant’s claim which Judge Dart correctly described as “modest” given the nature of the claim.

5. The remaining grounds complain of the “weight” and “consideration” given by Peek J to the matters argued before him.  There is no merit in the appeal.  The decisions of both Judge Dart and Peek J are plainly correct.

6. Permission to appeal is refused.