Harris v Harris [2021] NSWCA 329

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Harris v Harris [2021] NSWCA 329 Hearing dates: 29 November 2021 Date of orders: 17 December 2021 Decision date: 17 December 2021 Before: Basten JA at [1] Gleeson JA at [2] Brereton JA at [89] Decision: (1) Appeal dismissed. (2) Appellants to pay the first and second respondents' costs. Catchwords: CIVIL PROCEDURE – application to vacate hearing – where admissions by appellants of loan balances outstanding – appellants belatedly sought access to records held by provisional liquidator in aid of potential application to withdraw admissions – primary judge found appellants had access to relevant documents and delayed seeking and reviewing documents – whether appellants deprived of opportunity to review documents – whether error in discretionary decision refusing to vacate the hearing CIVIL PROCEDURE – pleadings – where derivative proceedings on behalf of company to recover management fees – where pleadings alleged certain management fees were "excessive" – defence asserted entitlement to reasonable remuneration – parties had served lay and expert evidence as to reasonable remuneration – respondents' written opening put in issue whether remuneration was reasonable – whether appellants put on notice of case they had to meet Legislation Cited: Corporations Act 2001 (Cth), ss 180, 236, 237, 247A, 461 Supreme Court Act 1970 (NSW), s 75A Uniform Civil Procedure Rules 2005 (NSW), rr 14.27, 42.1, 51.53, 51.36 Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39 Banque Commerciale S.A. (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11 Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82 Betfair Pty Ltd v Racing New South Wales (2010) 189 FCR 356; [2010] FCAFC 133 Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70 Durham v Durham (2011) 80 NSWLR 335; [2011] NSWCA 62 Gould v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490; [1916] HCA 81 House v The King (1936) 55 CLR 499; [1936] HCA 40 In re the Will of F B Gilbert (dec) (1946) 46 SR (NSW) 318 In the matter of Sirrah Pty Ltd (in prov liq) [2017] NSWSC 1683 In the matter of Sirrah Pty Ltd (in prov liq) [2018] NSWSC 1802 In the matter of Sirrah Pty Ltd (in prov liq) [2021] NSWSC 140 In the matter of Sirrah Pty Ltd (in prov liq) [2021] NSWSC 140 In the matter of Sirrah Pty Ltd (in prov liq) [2021] NSWSC 413 Link 2 Pty Ltd v Ezystay Systems Pty Ltd [2016] NSWCA 317 Newton v Ellis [2012] NSWCA 106 Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15 Whall v Stamp [2019] NSWCA 163 Category: Principal judgment Parties: William Francis Harris (First appellant) Harris Health Care Pty Ltd (ACN 071 243 617) (Second appellant) Gregory Thomas Brown (First respondent) Monica Mary Brown (Second respondent) Sirrah Pty Ltd (ACN 000 417 247) (Third respondent) Michelle Joy Harris (Fourth respondent) Representation: Counsel: A F Fernon SC / E A Walker (Appellants) S A Wells / J R Anderson (First and second respondents) J S Tobin (Third respondent)