Paul's Retail Pty Ltd v Morgan [2009] NSWSC 1343

Paul's Retail Pty Ltd v Morgan [2009] NSWSC 1343

It was not obvious there had been a miscarriage of justice in the original judgment, as the alleged lack of evidence of unanticipated costs was not clearly established against the weight of evidence before the court. Entertaining the application further would risk the judge acting as an appeal court to his own decision, which is inappropriate; the proper avenue for contesting the issue is by appeal, not reopening.

Parties
First Plaintiff: Paul's Retail Pty Ltd; Second Plaintiff: Paul Andrew Dwyer; Defendant: John Maxwell Morgan
Jurisdiction
Australia
Judgment Date
02 December 2009
Procedural Posture
Motion in Existing Proceedings / Post Judgment Application to Reopen
Outcome
Application to reopen refused; costs ordered to defendant.
Legal Topics
Application to Reopen Judgment, Review of Administrator's Fees, Procedural Fairness
Civil Procedure Corporate Insolvency Application to Reopen Judgment Review of Administrator's Fees Procedural Fairness

Case Brief

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Parties

Paul's Retail Pty Ltd

First Plaintiff

Paul Andrew Dwyer

Second Plaintiff

John Maxwell Morgan

Defendant

Procedural Posture

Motion in Existing Proceedings / Post Judgment Application to Reopen

Legal Issues

  1. 1 Whether the judgment should be reopened under rule 36.16(3A) of the Uniform Civil Procedure Rules 2005
  2. 2 Whether there was a failure to deal with a material argument regarding evidence of unanticipated costs under s 449E Corporations Act 2001 (Cth)

Ratio Decidendi

It was not obvious there had been a miscarriage of justice in the original judgment, as the alleged lack of evidence of unanticipated costs was not clearly established against the weight of evidence before the court. Entertaining the application further would risk the judge acting as an appeal court to his own decision, which is inappropriate; the proper avenue for contesting the issue is by appeal, not reopening.

Court Disposition

Application to reopen refused; costs ordered to defendant.

Orders

  • Notice of motion filed 19 November 2009 dismissed.
  • Plaintiffs to pay the defendant's costs of the motion assessed on the ordinary basis.