New South Wales Court of Appeal - Decisions of Interest Search - Area of law: Practice and procedure


  1. 15/02/2017
    Practice and procedure: stays; security for costs

    Mr Pi’s claim for damages for breach of contract, assault and conversion of a washing machine was rejected in the Supreme Court. Mr Pi twice commenced judicial review proceedings from that decision, both of which were discontinued. Mr Pi then sought leave to appeal from the original decision.

    Sitting as a single judge in the Court of Appeal, Gleeson JA stayed the application for leave to appeal until Mr Pi had paid the costs of the two discontinued judicial review proceedings and provided security for costs of the application for leave to appeal. 

    The issue on appeal was whether Gleeson JA erred in granting the stay. This raised a question:

    • as to the circumstances in which a stay may be granted until thepayment of costs in earlier proceedings; and
    • whether the applicant’s prospects of success are relevant to the decision to order security for costs.


    • Gleeson JA erred in granting a stay until Mr Pi paid the costs of the discontinued judicial review proceedings. These costs might be set-off against other costs owed by Mr Zhou to Mr Pi.
    • There were “special circumstances” warranting an order for security of costs of the appeal (per Payne JA and Sackville AJA, Basten JA dissenting). The majority had regard to the applicant’s poor prospects of success, while Basten JA considered that the Court should not order a stay pending provision of security for costs on the ground that the application lacked merit.

    Pi v Zhou  [2017] NSWCA 16
  2. 10/02/2017
    Practice and procedure: rectification; precise scope of intention of parties

    The respondents were licensed real estate agents. The appellants were property developers who entered into written sales authorities with each of the agents. The agents commenced proceedings for recovery of their claimed commission. The developers cross-claimed that the agents were not entitled to commission because the sales authorities contravened the Estate Agents Act 1980 (Vic). The agents sought to amend their statements of claim to seek relief by way of rectification of the sales authorities.

    The issue on appeal was whether the agent’s amended claim, seeking relief by way of rectification, should be struck out. This raised a question:

    • whether contravention of an Act precludes rectification in respect of that contravention; and
    • as to the proper test for whether amended pleadings should be struck out with no right to re-plead.


    • The central consideration in whether the court will order rectification of an instrument is the precise scope of the intention of the parties. If the rectified document would not reflect the common intention of the parties, then the remedy will not be granted. In this case, rectification will not necessarily defeat or undermine the purpose of the Estate Agents Act, and the Court should take a proportionate response to the contravention.
    • The agent’s amended claim did not have no real prospects of success, in the sense of being fanciful. Accordingly, the amended claim should not be struck out.

    NSWCA cases considered include:

    Caringbah Investments Pty Ltd v Caringbah Business and Sports Club Ltd (in liq) [2016] NSWCA 165

    Mayo v W & K Holdings (NSW) Pty Ltd (in liq) [2015] NSWCA 119

    High Court cases considered include:

    Nelson v Nelson (1995) 184 CLR 538

    Simic v New South Wales Land and Housing Corporation [2016] HCA 47; 91 ALJR 108

    CA & CA Ballan Pty Ltd v Oliver Hume (Australia) Pty Ltd  [2017] VSCA 11
  3. 20/01/2017
    Practice and procedure: abuse of process

    Mr Tyne (as trustee) and a company controlled by Mr Tyne had brought, and then discontinued, proceedings in the Supreme Court of NSW. The proceedings were discontinued after a decision of the High Court of Singapore in relation to the same subject matter. UBS argued that it was an abuse of process for Mr Tyne (as trustee) and his spouse Ms Marks to bring proceedings in the Federal Court arising out of the same factual matrix.

    The issue on appeal was whether the appellants should be permitted to bring their actions in the Federal Court. This raised a question as to when abuse of process arises:

    • in circumstances where the applicant was not a party to the earlier proceedings; and
    • in circumstances where the earlier proceedings were decided on the basis of res judicata and not on their merits.


    • Jagot and Farrell JJ: in relation to Ms Marks, while it can be an abuse of process for a non-party to earlier proceedings to bring subsequent proceedings, UBS failed to prove Ms Marks’ knowledge of and role in the Supreme Court proceedings so as to demonstrate her opportunity to make her claims in the earlier proceedings. 
    • Dowsett J, in dissent: it was open to infer that the relationship between Mr Tyne and Ms Marks was such that Ms Marks should have brought her proceedings in conjunction with the earlier proceedings.
    • Jagot and Farrell JJ: in relation to Mr Tyne (as trustee), the Supreme Court proceedings to which the trustee was a party were permanently stayed on the basis of res judicata rather than on the basis of findings of fact or law about the substance of the claims. The earlier proceedings were not decided on their merits and there was no basis to find an abuse of process. 
    • Dowsett J, in dissent: the Federal Court of Australia Act requires the quick, inexpensive and efficient resolution of proceedings, the decision to discontinue the earlier proceedings was a forensic decision and to allow Mr Tyne (as trustee) to bring fresh proceedings would inflict manifest unfairness upon UBS.

    NSWCA cases considered include:

    Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; (2010) 75 NSWLR 245

    Ghosh v NineMSN Pty Ltd [2015] NSWCA 334

    High Court cases considered:

    Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council [2006] HCA 27; 226 CLR 256

    Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 89 ALJR 750

    Tyne (Trustee) v UBS AG (No 2)  [2017] FCAFC 5
  4. 21/12/2016
    Practice and procedure: whether leave should be granted to amend statement of claim to join the different Boral company as alternative defendant; forensic decision made to not join alternative defendant at first instance

    Boral Limited v Foley & Bear Pty Ltd trading as J&R Industries  [2016] NSWCA 373
  5. 19/12/2016
    Practice and procedure: subpoena required the Commissioner to produce recordings which were “protected information” under Surveillance Devices Act 2007 (NSW); prohibition under s 40(1) against use, communication or publication of such information; Commissioner applied to set aside subpoena on basis that lacked any legitimate forensic purpose because recordings could not lawfully be used in proceedings; primary judge ordered production of recordings to Court; whether subpoena lacked legitimate forensic purpose; whether primary judge erred in ordering production; whether tender of recordings in evidence or use of contents to issue further subpoena constituted use

    NSW Commissioner of Police v Zurich Australian Insurance Ltd  [2016] NSWCA 365
  6. 14/12/2016
    Practice and procedure: parties; joinder; applicants for joinder beneficiaries of trust; order made that trustee of trust be wound up

    Peter Sleiman Investments Pty Limited as trustee for the Sleiman Family Trust v Deputy Commissioner of Taxation  [2016] NSWCA 355
  7. 14/12/2016
    Practice and procedure: stay of proceedings; application for stay where winding up order made in favour of Deputy Commissioner of Taxation on basis of applicant’s insolvency; appeal likely nugatory if stay not granted

    Peter Sleiman Investments Pty Limited as trustee for the Sleiman Family Trust v Deputy Commissioner of Taxation  [2016] NSWCA 355
  8. 13/12/2016
    Practice and procedure: variation of costs order; application for leave to appeal in 2012; leave refused with costs; application in 2016 under Uniform Civil Procedure Rules 2005 (NSW) r 36.16 for personal costs order against solicitor who acted for unsuccessful party; whether 14-day time limit in sub-r (3A) precluded application; whether application for variation of orders

    Rodi v Gelonesi  [2016] NSWCA 348
  9. 08/12/2016
    Practice and procedure: facts agreed for purpose of separate question; defendants reserved right to contend for different facts if question resolved unfavourably to them; whether appropriate to answer questions

    HP Mercantile Pty Ltd v Hartnett  [2016] NSWCA 342
  10. 04/12/2016
    Practice and procedure: stay of proceedings; application for stay of execution and enforcement of costs orders; party entitled to costs is impecunious; existence of reasonable grounds of appeal; whether stay should be made on conditions; whether payment into trust of costs appropriate

    Treloar Constructions Pty Limited v McMillan  [2016] NSWCA 302