HTT Huntley Heritage Pty Ltd v Land Enviro Corp Pty Ltd [2009] NSWCA 359

New South Wales Court of Appeal

CITATION: HTT Huntley Heritage Pty Ltd v Land Enviro Corp Pty Ltd [2009] NSWCA 359

HEARING DATE(S): 3 November 2009

JUDGMENT DATE: 3 November 2009

JUDGMENT OF: McColl JA at 1, 11; Campbell JA at 9

EX TEMPORE JUDGMENT DATE: 3 November 2009

DECISION: Application for leave to appeal dismissed with costs

CATCHWORDS: APPEAL – application for leave to appeal from refusal to strike out paragraphs of pleadings – whether refusal consistent with earlier judicial direction

LEGISLATION CITED: Supreme Court Act 1970 (NSW) Trade Practices Act 1974 (Cth)

CATEGORY: Principal judgment

House v R [1936] HCA 40; (1936) 55 CLR 499 CASES CITED: Land Enviro Corp Pty Limited v HTT Huntley Heritage Pty Limited [2008] NSWSC 185; (2008) 72 NSWLR 160 Land Enviro Corp Pty Limited v HTT Huntley Heritage Pty Limited [2009] NSWCS 711

PARTIES: HTT Huntley Heritage Pty Ltd - Applicant Land Enviro Corp Pty Ltd - Respondent

FILE NUMBER(S): CA 40298 of 2009

COUNSEL: N C Hutley SC with M W Sneddon and F Maghami - Applicant T Jucovic QC with S A Wells - Respondent

SOLICITORS: Gillard Consulting Lawyers - Applicant TressCox Lawyers - Respondent

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 2005 of 2007

LOWER COURT JUDICIAL OFFICER: Smart AJ

LOWER COURT DATE OF DECISION: 28 July 2009

LOWER COURT MEDIUM NEUTRAL CITATION: [2009] NSWSC 711

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40298/09 SC 2005/07

McCOLL JA CAMPBELL JA

Tuesday 3 November 2009 HTT HUNTLEY HERITAGE PTY LIMITED & ORS

v LAND ENVIRO CORP PTY LIMITED & ORS Judgment ex tempore 1 MCCOLL JA: This is an application for leave to appeal against a decision of Smart AJ, in which his Honour acceded, in part but not all, to the applicants' notice of motion seeking to strike out paragraphs of the respondents' further amended statement of claim, filed pursuant to an order made by Barrett J on 29 January 2009. 2 The history of the matter is complex but can be understood by reading the decision of Barrett J in Land Enviro Corp Pty Limited v HTT Huntley Heritage Pty Limited [2008] NSWSC 185; (2008) 72 NSWLR 160 and the reasons of Smart AJ in the judgment from which leave to appeal is sought: Land Enviro Corp Pty Limited v HTT Huntley Heritage Pty Limited [2009] NSWCS 711. 3 In short, Barrett J permitted the respondents to pursue, in one action in this Court, a claim to set aside a consent order entered in 2004, dismissing 2001 proceedings and antecedent agreements which led to those consent orders. The basis of the respondents' claim to set aside those agreements is set out more particularly in the further amended statement of claim, but in substance alleges that those agreements and the consent order for dismissal were procured by misleading and deceptive conduct under the Trade Practices Act 1974 (Cth). 4 Barrett J's reasons (at [48]) also contemplated that what his Honour classified as claims in the second group, which he permitted to go forward, were directed towards Land Enviro Corp Pty Ltd obtaining an award of damages for the allegedly deceptive conduct to which I have referred in relation to the procuring of what his Honour described as the 2004 settlement agreements and consent orders. 5 Consequent upon that decision, the respondents filed a further amended statement of claim, of which subsequent complaint was made, as I have said, before Smart AJ. Smart AJ struck out some paragraphs which, in his Honour's view, contravened Barrett J's orders. 6 The essence of the applicants' complaint on the application for leave to appeal is that the further amended statement of claim impermissibly seeks to recover damages for losses arising from the causes of action which were given away or settled by reason of the 2004 consent order. 7 In my view, this is precisely the course of action Barrett J permitted the respondents to pursue. There has been no challenge to the judgment of Barrett J and, while it stands, in my view it is open to the respondent to pursue the claims which Smart AJ permitted to remain in the further amended statement of claim. 8 That is subject to one matter, to which Campbell JA drew attention this morning, insofar as paragraphs 16C, 16D and 16Q of the further amended statement of claim are concerned. Mr T Jucovic of Queens Counsel, who appears for the respondents today, agrees that, in the exercise of my powers as a single judge of this Court pursuant to s 46 of the Supreme Court Act 1970 (NSW), those paragraphs can be struck out from the further amended statement of claim as having remained in by virtue of a slip of Smart AJ. Otherwise, in my view, the applicants have not demonstrated any error within House v R [1936] HCA 40; (1936) 55 CLR 499 which would attract a grant of leave to appeal. The application for leave to appeal should be dismissed, with costs. 9 CAMPBELL JA: Insofar as the striking out of paragraphs 16C, 16D and 16Q was effected using the presiding judge's powers of a single judge, there is no occasion for me to express a view concerning it. 10 I agree with the rest of her Honour's reasons and orders. 11 McCOLL JA: The order of the Court is that the application for leave to appeal is dismissed with costs. **********

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