Prynew Pty Limited v Nemeth [2011] NSWCA 5

Prynew Pty Limited v Nemeth [2011] NSWCA 5

Motion to dismiss appeal for delay was refused as not yet warranted, but appellants' lack of preparation justified adverse costs orders. Leave to amend notice of appeal and submissions granted as the amendments reflected a significant narrowing of issues. Application to adduce fresh evidence was refused due to irrelevance, poor form, and lack of proper identification of material. Directions made for future conduct and filing.

Parties
First Appellant/first Cross Respondent: Prynew Pty Limited; Second Appellant/second Cross Respondent: Peter Tsu; First Respondent/cross Appellant: Ferdinand Nemeth; Second Respondent/third Cross Respondent: Virginia Nemeth; Third Respondent: QBE Mercantile Mutual Limited; Third Cross Respondent: Piling Contractors (Qld) Pty Limited
Jurisdiction
Australia
Judgment Date
31 January 2011
Procedural Posture
Civil Appeal / Interlocutory (motions Regarding Amendment, Evidence, Costs)
Outcome
Interlocutory motions determined; appeal to proceed upon amended notice of appeal/submissions, subject to orders.
Legal Topics
Pleadings, Application to Amend, Application to Adduce Fresh Evidence, Application for Dismissal With Costs, Costs Vacation of Hearing, Costs Indemnity, Costs Abandonment of Issues
Civil Procedure Pleadings Application to Amend Application to Adduce Fresh Evidence Application for Dismissal With Costs Costs Vacation of Hearing Costs Indemnity Costs Abandonment of Issues

Case Brief

Summary, issues, holding and outcome

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Parties

Prynew Pty Limited

First Appellant/first Cross Respondent

Peter Tsu

Second Appellant/second Cross Respondent

Ferdinand Nemeth

First Respondent/cross Appellant

Virginia Nemeth

Second Respondent/third Cross Respondent

QBE Mercantile Mutual Limited

Third Respondent

Piling Contractors (Qld) Pty Limited

Third Cross Respondent

Procedural Posture

Civil Appeal / Interlocutory (motions Regarding Amendment, Evidence, Costs)

Legal Issues

  1. 1 Whether appeal should be dismissed under s 61 of the Civil Procedure Act 2005 for delay and inefficiency
  2. 2 Whether leave should be granted to amend notice of appeal and submissions
  3. 3 Whether leave should be granted to adduce fresh evidence on appeal

Ratio Decidendi

Motion to dismiss appeal for delay was refused as not yet warranted, but appellants' lack of preparation justified adverse costs orders. Leave to amend notice of appeal and submissions granted as the amendments reflected a significant narrowing of issues. Application to adduce fresh evidence was refused due to irrelevance, poor form, and lack of proper identification of material. Directions made for future conduct and filing.

Court Disposition

Interlocutory motions determined; appeal to proceed upon amended notice of appeal/submissions, subject to orders.

Orders

  • First respondent's motion to dismiss appeal dismissed; appellants to pay costs to first and fourth respondents of that motion.
  • Hearing dates of 21 and 22 February vacated; appellants to pay indemnity costs to first and fourth respondents thrown away by vacation of hearing, costs assessable forthwith.