Devine Real Estate v Agha & Anor [2022] NSWSC 543

Devine Real Estate v Agha & Anor [2022] NSWSC 543

The motion failed because the relevant liability question had already been determined, the orders had been entered, and UCPR r 36.16 did not provide a basis to reopen the case. Rule 36.16(1) was inapplicable because entry had occurred, and r 36.16(3) did not assist because the Court had determined the question of liability, later corrected by the Court of Appeal. It was not appropriate to dispense with the rules under s 14 of the Civil Procedure Act 2005 (NSW), and any discretion to permit reopening should not be exercised because of the extensive unexplained delay, the finality of the appeal outcome, prejudice to Mr Coombe, and the likely scope, cost, and length of renewed litigation.

Jurisdiction
Australia
Judgment Date
05 May 2022
Procedural Posture
Notice of Motion to Reopen Hearing and Vary Entered Orders / Post Judgment Procedural Ruling in the Equity Expedition List After Appeal and Dismissal of Special Leave Application
Outcome
Motion dismissed
Legal Topics
['reopening After Judgment and Appeal' 'variation or Setting Aside of Entered Orders' 'ucpr R 36.16' 'finality of Litigation' 'separate Determination of Liability' 'discretion and Delay']
['civil Procedure' 'equity' 'corporations Law'] ['reopening After Judgment and Appeal' 'variation or Setting Aside of Entered Orders' 'ucpr R 36.16' 'finality of Litigation' 'separate Determination of Liability' 'discretion and Delay']

Case Brief

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Procedural Posture

Notice of Motion to Reopen Hearing and Vary Entered Orders / Post Judgment Procedural Ruling in the Equity Expedition List After Appeal and Dismissal of Special Leave Application

Legal Issues

  1. 1 ['Whether the plaintiffs could reopen their case on liability in relation to existing paragraphs of the Statement of Claim filed in 2018.' 'Whether UCPR r 36.16(1) or r 36.16(3) applied to permit variation or reopening after entry of orders.' 'Whether s 14 of the Civil Procedure Act 2005 (NSW) should be used to dispense with any applicable time limitation or rule requirement.' 'Whether the Court should exercise any discretion to permit reopening in light of delay, finality, prejudice to Mr Coombe, and the prior appeal outcome.']

Ratio Decidendi

The motion failed because the relevant liability question had already been determined, the orders had been entered, and UCPR r 36.16 did not provide a basis to reopen the case. Rule 36.16(1) was inapplicable because entry had occurred, and r 36.16(3) did not assist because the Court had determined the question of liability, later corrected by the Court of Appeal. It was not appropriate to dispense with the rules under s 14 of the Civil Procedure Act 2005 (NSW), and any discretion to permit reopening should not be exercised because of the extensive unexplained delay, the finality of the appeal outcome, prejudice to Mr Coombe, and the likely scope, cost, and length of renewed litigation.

Court Disposition

Motion dismissed

Orders

  • ['The Notice of Motion was dismissed.' "The plaintiffs were ordered to pay the second defendant's costs."]