Higgins v Brennan [2004] NSWCA 23

New South Wales Court of Appeal

CITATION : Higgins v Brennan [2004] NSWCA 23 HEARING DATE(S) : 13 February 2004 JUDGMENT DATE : 13 February 2004

JUDGMENT OF : Giles JA at 1; Santow J at 13 DECISION : Leave to appeal granted. By consent order made this morning in the Equity Division dismissing the claimant's application for interlocutory relief set aside. Costs of the application for leave to appeal to be paid in accordance with the order made by the judge in the Equity Division before whom that application comes when renewed. Remit the proceedings to the Equity Division so that the claimant may renew her application for interlocutory relief.

CATCHWORDS : Leave to appeal - application for interlocutory relief - failure to hear submissions - remarks about taking technical points - strong arguable case that did not give procedural fairness. PARTIES : M Higgins - Claimant P Brennan - Opponent FILE NUMBER(S) : CA 40134/04 D J Hammerschlag SC - Claimant COUNSEL : S Dawson - Opponent

SOLICITORS : Cara Marsasco & Co - Claimant Tress Cox & Maddox - Opponent

LOWER COURT Supreme Court - Equity Division JURISDICTION : LOWER COURT ED 1414/04 FILE NUMBER(S) : LOWER COURT Young CJ in Eq JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40134/04 ED 1414/04

GILES JA SANTOW JA

Friday 13 Febuary 2004 HIGGINS v BRENNAN Judgment 1 GILES JA: This is an application for leave to appeal, brought on as a matter of urgency and with commendable co-operation between the solicitors and counsel for the parties. 2 The claimant applied for interlocutory relief in the Equity Division. She first applied on 10 February 2004 when relief was declined and a direction was given that the opponents serve any affidavit evidence by 4pm on 12 February 2004: according to the evidence before us, it seems with the rider "if possible". 3 The matter came back before the judge this morning. An affidavit had not been served by the opponents. Counsel for the opponents informed the Court that he wished to file an affidavit in Court, that he also sought leave to file a cross-claim and a notice of motion, and that the opponents intended to proffer undertakings which in his submission would make interlocutory relief unnecessary. 4 After a brief adjournment to enable the claimant to consider her position on those matters, the proceedings resumed. Counsel for the claimant was asked his attitude to the opponents' affidavit, cross-claim and notice of motion. The response was that their filing was opposed on the basis that they were late and the direction with respect to the affidavit had not been complied with. 5 According to the evidence before us, as supplemented by statements from the bar table which the opposing party was content to accept for the purposes of the application, the following then occurred. 6 The judge said to counsel for the claimant, "So you are not doing equity, if you seek equity you must do equity". Without affording either counsel the opportunity to address the Court, the judge refused the opponents' leave to file their affidavit, and said words to the effect - "I will not permit the taking of technical points. Even though documents have been filed late, I expect parties to co-operate where it is a one day matter and the Court has set aside time. In this matter, in the same transaction the plaintiff refuses to do equity. I have read the papers and I am satisfied that there is no interest entitling the plaintiff to the relief she seeks. The opposition by the plaintiff seeks to have the plaintiff in the same transaction do equity by bringing the agreement on her side and she refuses to do equity. For these reasons of substance and discretion I dismiss the motion." 7 The penultimate sentence is difficult to understand, but is as stated to us. The judge then made an order whereby costs were reserved. His Honour said at some point, "If the parties are going to spend $5000 for the day, I expect the matter to be dealt with". 8 Leave was given to file the cross-claim and the claimant's summons was stood over until Monday next before the Registrar.