Williamson v Scarano

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Williamson v Scarano [2012] NSWCA 432

Hearing dates:

12 December 2012

Decision date:

20 December 2012

Before:

Meagher JA at [1];
Hoeben JA at [38];
Ward JA at [39]

Decision:

(1) Appeal allowed in part.

(2) Set aside orders 3, 4, 5, 7, 8 and 9 made by Bryson AJ on 4 November 2011.

(3) Order that the respondent's notice of motion of 1 July 2011 be dismissed.

(4) Order that the appellant pay 90 per cent of the respondent's costs of the appeal.

[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:

PRACTICE AND PROCEDURE - appeal against refusal of application for leave to amend pleadings - proposed amendment previously pleaded, abandoned and sought to be revived in context of application for summary dismissal - no explanation as to why sought to be revived - primary judge entitled to infer proposed amendments made to stave off summary dismissal

Legislation Cited:

Real Property Act 1900
Uniform Civil Procedure Rules 2005 rr 13.4, 42.7(2)

Cases Cited:

Co-Ownership Land Development Pty Ltd v Queensland Estates Pty Ltd (1973) 47 ALJR 519
David Williamson v Vince Scarano [2011] NSWSC 1318
Delaforce v Simpson-Cook [2010] NSWCA 84; 78 NSWLR 483.
Fiduciary Ltd v Morningstar Research Pty Ltd [2002] NSWSC 432; 55 NSWLR 1
Gillett v Holt [2001] Ch 210
Giumelli v Giumelli [1999] HCA 10; 196 CLR 101
Holloway v McFeeters [1956] HCA 25; 94 CLR 470
House v The King [1936] HCA 40; 55 CLR 499
Poignand v NZI Securities Australia Pty Ltd (1992) 37 FCR 363
Williamson v Scarano [2010] NSWSC 975

Category:

Principal judgment

Parties:

David Williamson (Appellant)
Vince Scarano (Respondent)

Representation:

Counsel:
G McVay (Appellant)
D E Baran (Respondent)
Solicitors:
Mills Oakley Lawyers (Appellant)
Jacovou & Co, Hurstville (Respondent)

File Number(s):

2010/257420

 Decision under appeal 

Citation:

David Williamson v Vince Scarano
[2011] NSWSC 1318

Date of Decision:

2011-11-04 00:00:00

Before:

Bryson AJ

File Number(s):

2010/257420

Judgment

1. MEAGHER JA: This is an appeal from an interlocutory decision of Bryson AJ, sitting in the Equity Division, on a question of practice and procedure: DavidWilliamson v Vince Scarano [2011] NSWSC 1318. His Honour refused an application by the appellant (as plaintiff) to make certain amendments to his pleading and imposed a term requiring payment of a sum on account of costs in relation to other amendments which were allowed. On 23 March 2012, the appellant, Mr Williamson, was granted leave to appeal by Beazley and Whealy JJA. For the reasons which follow, that appeal should be allowed in part and the imposition of…