Corry v NHB Enterprises Pty Ltd [2023] NSWCA 162

Corry v NHB Enterprises Pty Ltd [2023] NSWCA 162

The further evidence was refused admission because it was not capable of establishing legal, factual or discretionary error in the penalty imposed by the primary judge. The appellant did not assert that a different outcome must have resulted if the further evidence was before the primary judge, only that it might have. Accordingly, the challenged orders were not shown to be affected by error, and the appeal was dismissed.

Parties
First Appellant: Alexander Corry; Second Appellant: Boriana Corry; First Respondent: NHB Enterprises Pty Ltd; Second Respondent: Finn Pharmaceuticals Pty Ltd
Jurisdiction
Australia
Judgment Date
13 July 2023
Procedural Posture
Appeal / Court of Appeal Judgment on Appeal and Motion for Admission of Further Evidence
Outcome
Appeal dismissed, application to admit further evidence refused, costs ordered against appellants
Legal Topics
Admission of Further Evidence on Appeal, Appellate Procedure, Civil Contempt Penalty, Suspended Sentence
Contempt of Court Civil Procedure Admission of Further Evidence on Appeal Appellate Procedure Civil Contempt Penalty Suspended Sentence

Case Brief

Summary, issues, holding and outcome

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Parties

Alexander Corry

First Appellant

Boriana Corry

Second Appellant

NHB Enterprises Pty Ltd

First Respondent

Finn Pharmaceuticals Pty Ltd

Second Respondent

Procedural Posture

Appeal / Court of Appeal Judgment on Appeal and Motion for Admission of Further Evidence

Legal Issues

  1. 1 Whether further evidence (psychiatric report) should be admitted on appeal under Supreme Court Act 1970 (NSW) s 75A(7),(8)
  2. 2 Whether the penalty imposed for contempt involved legal, factual or discretionary error justifying appellate re-exercise of discretion

Ratio Decidendi

The further evidence was refused admission because it was not capable of establishing legal, factual or discretionary error in the penalty imposed by the primary judge. The appellant did not assert that a different outcome must have resulted if the further evidence was before the primary judge, only that it might have. Accordingly, the challenged orders were not shown to be affected by error, and the appeal was dismissed.

Court Disposition

Appeal dismissed, application to admit further evidence refused, costs ordered against appellants

Orders

  • Dismiss the first appellant's Notice of Motion filed 17 March 2023 seeking admission of Mr Borenstein's report as evidence in the appeal.
  • Dismiss the first appellant's Amended Notice of Appeal filed 20 March 2023.