Scott MacRae Investments Pty Ltd & Anor v Baylily Pty Ltd & Anor [2011] NSWCA 82

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Scott MacRae Investments Pty Ltd & Anor v Baylily Pty Ltd & Anor [2011] NSWCA 82 Hearing dates: 25 February 2011 Decision date: 08 April 2011 Before: Beazley JA at 1, Giles JA at 2, Hodgson JA at 129 Decision: 1. Grant leave to appeal and direct that the notice of appeal be filed within seven days. 2. Appeal against the disposal of the amended notice of motion filed on 5 March 2010, other than against order 2 made on 26 March 2010, dismissed. 3. Appeal against order 2 made on 26 March 2010 allowed. 4. Order that order 2 made on 26 March 2010 be set aside. 5. Grant leave to cross-appeal and direct that the notice of cross-appeal be filed within seven days. 6. Cross-appeal allowed. 7. Order that order 1 made on 26 March 2010 be set aside, and in lieu thereof order that the plaintiffs pay the costs of Baylily and PLP of and incidental to the amended notice of motion filed on 5 March 2010. 8. Order that the applicants/appellants pay the respondents' costs of the applications for leave and of the appeal and cross-appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - inadequacy of reasons - can not be seen why judgment on admissions refused - claim to summary judgment not dealt with - other inconsistency or obscurity - leave to appeal granted. PROCEDURE - judgment on admissions requires clear admissions - issue of appointment of new trustee - no clear admissions - statement in issues response on which applicant relied did not admit entitlement to relief or facts on which entitlement based - summary judgment required proof of passing of a resolution - not proved (see below) - order imposed for decision of separate questions - no adequate reasons - failure to give procedural fairness - questions inappropriate in terms - not situation for separate questions. EVIDENCE - copy minute of resolution tendered as business record - need for proof that was business record - evidence on information and belief - inadmissible where not interlocutory proceedings (Evidence Act, s 75) - business record not proved. COSTS - indemnity costs order against successful respondent - order not warranted - inutility of applications for judgment - costs against applicant. Cases Cited: Ash v Hutchinson & Co (Publishers) Ltd (1936) Ch 489; Australian Competition and Consumer Commission v Francis [2004] FCA 487; (2004) 142 FCR 1; Degmam Pty Ltd (In Liquidation) v Wright (No 2) (1983) 2 NSWLR 354; Ellis v Allen (1914) 1 Ch 904; King Investment Solutions v Hussian [2005] NSWSC 1076; Meehan v Glazier Holdings Pty Ltd [2002] NSWCA 22; (2002) 54 NSWLR 146; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72; Re Smith; Ex parte Rundle (No 2) (1991) 6 WAR 299; Warramunda Village Inc v Pryde [2001] FCA 61; (2001) 105 FCR 437; Category: Principal judgment Parties: Scott MacRae Investments Pty Ltd - Appellant Baylily Pty Ltd - First Respondent Pacific Lennox Properties Pty Ltd - Second Respondent Representation: Counsel: S G Finch SC & A J Grant - Appellant M Einfeld QC & M Green - Respondent Solicitors: Mitchell Lawyers - Appellant Bruce Stewart Dimarco - Respondent File Number(s): CA 2009/208683 Decision under appeal Citation: Scott MacRae Investments Pty Limited & Anor v Baylily Pty Ltd & Ors [2010] NSWSC 174 Before: Einstein J File Number(s): SC 2009/298683