Lawrence v Gunner (No 3) [2016] NSWCA 18

Lawrence v Gunner (No 3) [2016] NSWCA 18

The appellants failed to demonstrate any material change in circumstances, new material not reasonably obtainable earlier, arguable basis for further evidence, legitimate forensic purpose for the proposed subpoenas, proper basis for joinder of additional respondents, or relevant error justifying strike out of the amended cross-claim. The appellants' 22 January 2016 motion was therefore dismissed with costs; the respondent's summary dismissal motion had become otiose after service of a revised amended notice of appeal and was dismissed, with limited costs consequences in the appeal.

Jurisdiction
Australia
Judgment Date
19 February 2016
Procedural Posture
Procedural and Other Rulings in a Civil Appeal / Interlocutory Motions in an Appeal From Judgments of Stevenson J in the Supreme Court Equity Division
Outcome
The appellants' notice of motion filed 22 January 2016 was dismissed with costs; the respondent's notice of motion filed 2 November 2015 was dismissed; costs of the amendment and of the respondent's motion were dealt with as costs in the appeal.
Legal Topics
['variation of Stay Pending Appeal' 'summary Dismissal of Appeal' 'amendment of Notice of Appeal' 'joinder of Parties on Appeal' 'leave to Issue Subpoenas' 'further Evidence on Appeal' 'strike Out of Amended Cross Claim' 'costs']
['civil Procedure' 'appellate Procedure'] ['variation of Stay Pending Appeal' 'summary Dismissal of Appeal' 'amendment of Notice of Appeal' 'joinder of Parties on Appeal' 'leave to Issue Subpoenas' 'further Evidence on Appeal' 'strike Out of Amended Cross Claim' 'costs']

Case Brief

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Procedural Posture

Procedural and Other Rulings in a Civil Appeal / Interlocutory Motions in an Appeal From Judgments of Stevenson J in the Supreme Court Equity Division

Legal Issues

  1. 1 ['Whether the existing stay ordered on 15 October 2015 should be varied.' 'Whether additional respondents, namely the estate of the late Norman Henry Gunner and the Tribunal, should be joined to the appeal.' 'Whether leave should be granted to issue subpoenas for production of documents.' "Whether paragraphs of the respondent's amended cross-claim should be struck out in advance of the appeal." "What costs orders should be made concerning the parties' motions and the amendment to the notice of appeal."]

Ratio Decidendi

The appellants failed to demonstrate any material change in circumstances, new material not reasonably obtainable earlier, arguable basis for further evidence, legitimate forensic purpose for the proposed subpoenas, proper basis for joinder of additional respondents, or relevant error justifying strike out of the amended cross-claim. The appellants' 22 January 2016 motion was therefore dismissed with costs; the respondent's summary dismissal motion had become otiose after service of a revised amended notice of appeal and was dismissed, with limited costs consequences in the appeal.

Court Disposition

The appellants' notice of motion filed 22 January 2016 was dismissed with costs; the respondent's notice of motion filed 2 November 2015 was dismissed; costs of the amendment and of the respondent's motion were dealt with as costs in the appeal.

Orders

  • ["The appellants' notice of motion filed 22 January 2016 be dismissed with costs." "The respondent's notice of motion filed 2 November 2015 be dismissed." "The appellants' costs of the amendment to the notice of appeal in the form of the revised document dated 18 December 2015 shall be the appellants' costs in the...