Namoi Sustainable Energy Pty Limited v Buhren and anor. [2022] NSWSC 175

Supreme Court New South Wales

Medium Neutral Citation: Namoi Sustainable Energy Pty Limited v Buhren and anor. [2022] NSWSC 175 Hearing dates: 17 February 2022 Date of orders: 17 February 2022 Decision date: 17 February 2022 Jurisdiction: Common Law Before: Bellew J Decision: (1) The summons is dismissed. (2) The applicant is to pay the costs of the respondents on an ordinary basis up to and including 1 September 2021, and on an indemnity basis thereafter. Catchwords: CIVIL PROCEEDINGS – Practice and procedure – Application for leave to appeal from an interlocutory decision of a Magistrate in the Local Court – Where the proceedings had been before the Local Court for hearing on six separate days – Consideration of principles to be applied in determining whether leave should be granted – Where the application of such principles weighed strongly against a grant of leave in the present case – Necessity for the applicant to demonstrate something more than an arguable error – No question of principle or issue of public importance – Where the costs incurred were disproportionate to the amount in issue – Leave to appeal refused – Summons dismissed PRACTICE AND PROCEDURE – Observations as to the utility of bringing an application for leave to appeal against an interlocutory decision of a Magistrate in the Local Court in circumstances where the proceedings in the Local Court were allowed to continue to finality before the application for leave was heard and determined – Necessity for parties to conduct litigation in a way which is conducive to the just, quick and cheap resolution of the issues and which is consistent with the dictates of justice Legislation Cited: Civil Procedure Act 2005 (NSW) Evidence Act 1995 (NSW) Local Court Act 2007 (NSW) Sale of Goods Act 1923 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Be Financial Pty Ltd as Trustee for Financial Operations Trust v Das [2012] NSWCA 164 Calderbank v Calderbank [1975] 3 All ER 333 Carolan v AMF Bowling Pty Ltd trading as Bennetts Green Bowl [1995] NSWCA 69 Cooper v Atkin [2021] NSWCA 82 Coulter v The Queen (1988) 164 CLR 350 Crane v The Mission to Seafarers Newcastle Incorporated [2018] NSWSC 429 De Armas v Peters [2015] NSWSC 1050 Jaycar Pty Limited v Lombardo [2011] NSWCA 284 Lukaszewicz v Polish Club Limited [2020] NSWCA 99 MacPhail v MacPhail [2017] NSWSC 942 McEvoy v Wagglens Pty Ltd [2021] NSWCA 104 Sattar v Boral Constructions Materials Group Limited [2018] NSWSC 196 Sayed v Deng [2012] NSWSC 851 Sokolowski v Craine [2019] NSWSC 1123 Zelden v Sewell; Henamast Pty Limited v Sewell [2011] NSWCA 56 Zheng v R; Li v R; Pan v R (2021) 104 NSWLR 668; [2021] NSWCCA 78 Category: Principal judgment Parties: Namoi Sustainable Energy Pty Limited – Applicant Wolf Buhren – First Respondent Wolf Buhren as Executor of the Estate of the Late Mary Buhren – Second Respondent Representation: Counsel: S Doupe – Applicant G J Gemmell – First and Second Respondents