Gregory John King v Cake It Away Pty Limited [2004] NSWIRComm 377

Gregory John King v Cake It Away Pty Limited [2004] NSWIRComm 377

The appellant's Notice of Motion was dismissed because he identified no exceptional circumstance warranting re-opening of the appeal proceedings: there was no fraud, mistake, or denial of a full hearing, and his reliance on the Trade Practices Act 1974 (Cth) and the Credit Act 1984 (NSW) did not add anything relevantly new or legally relevant to the facts and circumstances. The Court also held that costs of the Notice of Contention should not be included in costs orders against the appellant, that the eighth and ninth respondents should receive their appeal costs excluding Notice of Contention costs because they were wholly successful, and that the first to seventh respondents should...

Jurisdiction
Australia
Judgment Date
09 December 2004
Procedural Posture
Notice of Motion to Re Open Appeal Proceedings and Applications for Costs in an Application for Leave to Appeal and Appeal / Supplementary Judgment Re Notice of Motion and Costs
Outcome
The appellant's Notice of Motion to re-open the appeal proceedings was dismissed, and costs orders were made in favour of the respondents subject to exclusions for the Notice of Contention.
Legal Topics
['re Opening Appeal Proceedings' 'functus Officio' 'finality of Litigation' 'unfair Contracts Under S106 of the Industrial Relations Act 1996' 'misrepresentation in Franchise Agreement' 'notice of Contention' 'costs Following the Event']
['industrial Relations' 'civil Procedure' 'costs' 'trade Practices' 'consumer Credit'] ['re Opening Appeal Proceedings' 'functus Officio' 'finality of Litigation' 'unfair Contracts Under S106 of the Industrial Relations Act 1996' 'misrepresentation in Franchise Agreement' 'notice of Contention' 'costs Following the Event']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Notice of Motion to Re Open Appeal Proceedings and Applications for Costs in an Application for Leave to Appeal and Appeal / Supplementary Judgment Re Notice of Motion and Costs

Legal Issues

  1. 1 ["Whether the appeal proceedings should be re-opened on the basis of the appellant's reliance on the Trade Practices Act 1974 (Cth) and the Credit Act 1984 (NSW)." "Whether any exceptional circumstance, such as fraud, mistake, or denial of a hearing, warranted re-opening the Court's perfected decision." 'What costs orders should be made in favour of the first to seventh respondents and the eighth and ninth respondents, including whether costs of the Notice of Contention should be included.']

Ratio Decidendi

The appellant's Notice of Motion was dismissed because he identified no exceptional circumstance warranting re-opening of the appeal proceedings: there was no fraud, mistake, or denial of a full hearing, and his reliance on the Trade Practices Act 1974 (Cth) and the Credit Act 1984 (NSW) did not add anything relevantly new or legally relevant to the facts and circumstances. The Court also held that costs of the Notice of Contention should not be included in costs orders against the appellant, that the eighth and ninth respondents should receive their appeal costs excluding Notice of Contention costs because they were wholly successful, and that the first to seventh respondents should...

Court Disposition

The appellant's Notice of Motion to re-open the appeal proceedings was dismissed, and costs orders were made in favour of the respondents subject to exclusions for the Notice of Contention.

Orders

  • ['The Notice of Motion to re-open is dismissed.' 'The appellant is to pay the costs of the appeal of the eighth and ninth respondents but excluding those costs going to the Notice of Contention.' 'The appellant is to pay forty per cent of the costs of the first to seventh respondents in relation to the appeal but...