Sharpe v W.H. Bailey & Sons (No 3) [2013] NSWSC 1887

Sharpe v W.H. Bailey & Sons (No 3) [2013] NSWSC 1887

Leave to appeal was refused because, even assuming Mr Sharpe had raised an arguable basis for error about whether the entry of judgment was enforcement action under the Farm Debt Mediation Act 1994, the proposed appeal was futile. A creditor's petition had been presented against him, so s 5(2)(b) meant the Act did...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
16 December 2013
Procedural Posture
Local Court Appeal; Application for Leave to Appeal / Summons Seeking Leave to Appeal From a Local Court Refusal to Set Aside an Earlier Judgment
Outcome
Leave to appeal refused; plaintiff's summons dismissed; plaintiff ordered to pay defendant's costs on the ordinary basis.
Legal Topics
['leave to Appeal From Interlocutory Order' 'farm Debt Mediation Act 1994' 'enforcement Action' 'futility of Appeal' 'costs']
['civil Procedure' 'local Court Appeals' 'farm Debt Mediation' 'bankruptcy'] ['leave to Appeal From Interlocutory Order' 'farm Debt Mediation Act 1994' 'enforcement Action' 'futility of Appeal' 'costs']

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Procedural Posture

Local Court Appeal; Application for Leave to Appeal / Summons Seeking Leave to Appeal From a Local Court Refusal to Set Aside an Earlier Judgment

Legal Issues

  1. 1 ["Whether leave was required to appeal from the Local Court's refusal to set aside the earlier judgment and whether any appeal would be limited to questions of law." 'Whether the Terms of Settlement created or involved a farm debt or farm mortgage and whether entry of judgment was enforcement action prohibited by s 6 of the Farm Debt Mediation Act 1994.' "Whether the application for leave to appeal was futile because a creditor's petition had been presented against Mr Sharpe, engaging s 5(2)(b) of the Farm Debt Mediation Act 1994." 'Whether costs should be ordered on an indemnity basis or the ordinary basis.']

Ratio Decidendi

Leave to appeal was refused because, even assuming Mr Sharpe had raised an arguable basis for error about whether the entry of judgment was enforcement action under the Farm Debt Mediation Act 1994, the proposed appeal was futile. A creditor's petition had been presented against him, so s 5(2)(b) meant the Act did not now apply in respect of him; if the Local Court's refusal were set aside, the same result would have to follow. An adjournment was refused because it would cause further delay and cost and the opposition to the creditor's petition was assessed as having very low, if any, prospects of success.

Court Disposition

Leave to appeal refused; plaintiff's summons dismissed; plaintiff ordered to pay defendant's costs on the ordinary basis.

Orders

  • ['Leave to appeal be refused.' "Plaintiff's summons dismissed." "Order the Plaintiff to pay the Defendant's costs on the ordinary basis."]