Huang v Drumm (No 4) [2019] NSWCA 140

Huang v Drumm (No 4) [2019] NSWCA 140

Pembroke J's orders staying the proceeding under the inherent jurisdiction and s 67 of the Civil Procedure Act 2005 (NSW) were not properly made because the only application before him was a s 17 Trans-Tasman Proceedings Act 2010 (Cth) application, and he was not in a position on that application to conclude that the proceedings lacked an arguable foundation or were an abuse of process. Orders (a) and (b) therefore had to be set aside.

Jurisdiction
Australia
Judgment Date
17 June 2019
Procedural Posture
Appeal From Orders Staying Supreme Court Proceedings / Appeal After Limited Grant of Leave to Appeal
Outcome
Appeal allowed; orders (a) and (b) made by Pembroke J on 12 October 2018 set aside.
Legal Topics
['stay of Proceedings' 'abuse of Process' 'inherent Jurisdiction' 'civil Procedure Act 2005 (nsw) S 67' 'trans Tasman Proceedings Act 2010 (cth) S 17' 'notice of Appeal' 'costs']
['civil Procedure' 'appeals'] ['stay of Proceedings' 'abuse of Process' 'inherent Jurisdiction' 'civil Procedure Act 2005 (nsw) S 67' 'trans Tasman Proceedings Act 2010 (cth) S 17' 'notice of Appeal' 'costs']

Case Brief

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Procedural Posture

Appeal From Orders Staying Supreme Court Proceedings / Appeal After Limited Grant of Leave to Appeal

Legal Issues

  1. 1 ['Whether there was any proper foundation for the primary judge to make orders under the inherent jurisdiction and s 67 of the Civil Procedure Act 2005 (NSW) staying the proceedings as an abuse of process.' 'Whether the application for leave to appeal materials should be treated as constituting the notice of appeal after Ms Huang failed to file a notice of appeal as directed.' 'What costs orders should be made where Mr Drumm consented from 6 May 2019 to setting aside the only orders in respect of which leave to appeal had been granted.']

Ratio Decidendi

Pembroke J's orders staying the proceeding under the inherent jurisdiction and s 67 of the Civil Procedure Act 2005 (NSW) were not properly made because the only application before him was a s 17 Trans-Tasman Proceedings Act 2010 (Cth) application, and he was not in a position on that application to conclude that the proceedings lacked an arguable foundation or were an abuse of process. Orders (a) and (b) therefore had to be set aside.

Court Disposition

Appeal allowed; orders (a) and (b) made by Pembroke J on 12 October 2018 set aside.

Orders

  • ['The white book filed by Ms Huang on 11 January 2019 constitute the appeal book.' "The substance of paragraphs 17 and 19 of Ms Huang's draft amended notice of appeal filed with her application for leave to appeal constitute the notice of appeal." 'Appeal allowed.' 'Set aside orders (a) and (b) made by Pembroke J on...