Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Ellis v Newton [2012] NSWCA 22 Hearing dates: 27 February 2012 Decision date: 27 February 2012 Before: Young JA Decision: Notice of motion to dismiss for incompetence is dismissed with costs. [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: PRACTICE AND PROCEDURE- trial judge refuses adjournment, proceeds and finds a verdict for $189,000- Defendants appeal solely on ground that adjournment wrongly refused- Appellants seek to set aside judgment accordingly- Held interlocutory decision affected final result- appeal competent. Cases Cited: Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478 Category: Interlocutory applications Parties: Daniel Ellis (Applicant/Respondent) Richard Newton (First Appellant) Robyn Laidlaw Newton (Second Appellant) Representation: A Stafford (Applicant/Respondent) A C Kinghan (S) (First Appellant) B Levet (Second Appellant) Constantine G Pavlis and Co (Applicant/Respondent) Kinghan & Associates (First Appellant) Ronayne Lawyers (Second Appellant) File Number(s): CA 2008/279436 Judgment 1HIS HONOUR: This is a motion to dismiss an appeal for its alleged incompetence. The appeal is in respect of a decision made by Rein J in the Equity Division. The learned primary judge was asked to adjourn the proceedings. He decided that that would not be the appropriate course and went on to hear the case forthwith and gave a judgment against the appellants for $189,000. 2Even though the only ground of appeal is that his Honour was in error in refusing the adjournment, the appellants ask that the whole judgment be set aside because if his Honour were wrong on the adjournment question and the matter were adjourned and the appellants put on the material that they intended to put on, the result might have been quite different. 3The respondent has urged me to follow what the High Court said in Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478, para 6. Paragraph 6 says: "The proposition that any interlocutory order can be challenged in an appeal against the final judgment in the matter is often stated in unqualified terms. The better view, however, is reflected in the formulation adopted in Spencer Bower, Turner and Handley, where it is said that 'on an appeal from the final order an appellate court can correct any interlocutory order which affected the final result.'" ("which affected the final result" is in the High Court's judgment in italics with the words "emphasis added"). 4In the present case it seems to me that the interlocutory decision to refuse an adjournment did affect the final result and the appeal is competent. Accordingly, the notice of motion to dismiss for incompetence is dismissed with costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 March 2012