M & H J Webb Pty Ltd v M N Armour & Anor [1999] NSWCA 203

New South Wales Court of Appeal CITATION : M & H J Webb Pty Ltd v M N Armour & Anor [1999] NSWCA 203 FILE NUMBER(S) : CA 40243/98 HEARING DATE(S) : 17 June 1999 JUDGMENT DATE : 17 June 1999

M & H J WEBB PTY LTD PARTIES : MAXWELL NORMAN ARMOUR ROSEMARY EVELYN ARMOUR JUDGMENT OF : Giles JA at 1; Sully AJA at 8

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC8161/97 LOWER COURT JUDICIAL OFFICER : Vincent ADCJ

COUNSEL : Claimant - B J Skinner Opponents - M J Windsor SOLICITORS : Claimant - Pickering Priestley, Yamba Opponents - Donovan Oates Hannaford, Port Macquarie CATCHWORDS : DISTRICT COURT - judgment debt - Registrar's order for payment by instalments - judge declines to rescind order - whether disretion that should be payment by instalments miscarried - no error of principle shown - leave to appeal refused. DECISION : Extend time for leave to appeal until today; refuse application for leave to appeal; order claimant to pay the opponent's costs of the applications.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40243/98 DC 8161/97

GILES JA SULLY AJA

Thursday 17 June 1999 M & H J WEBB PTY LTD v MAXWELL NORMAN ARMOUR & ANOR

JUDGMENT

1 GILES JA: The claimant wishes to appeal from the refusal of Acting Judge Vincent to rescind the Registrar's order for the payment of a judgment debt by the opponents by instalments. It needs leave to appeal, and an extension of time for seeking leave to appeal. In the circumstances which have been explained, I consider that the extension of time should be given. The merits of the putative appeal have been argued, so that if leave were given the appeal could be disposed of without a further hearing. 2 It was necessary for the claimant to show, in accordance with the principles now well established and conventionally found in House v The King (1936) 55 CLR 499 at 504-5, that his Honour erred in the exercise of his discretion. The argument was that his Honour had erred in principle in taking into account or giving undue weight to a matter which he should not have so treated, what his Honour referred to as the commercial inutility of rescinding the order; and in not giving weight or sufficient weight to what in submissions before us was taken up within the phrase "commercial morality".