Bristow v Adams [2012] NSWCA 166

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bristow v Adams [2012] NSWCA 166 Hearing dates: 22 May 2012 Decision date: 22 May 2012 Before: Beazley JA at 1; Basten JA at 10; Tobias AJA at 45 Decision: 1. Refuse leave for the respondent to rely on its notice of contention filed on 1 December 2011. 2. Appeal allowed. 3. Set aside the verdict and judgment for the defendant made by the trial judge. 4. Order that there be a verdict and judgment for the plaintiff in the sum of $10,000. 5. There be no order for the costs of the appeal with the result that each party pay his or her own costs of the 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 - civil - grant of leave to appeal - overwhelming weight of authority supports appellant's position in relation to a point of fundamental principle - costs of appeal will exceed the amount in dispute - whether appropriate case for grant of leave to appeal

DAMAGES - assessment - whether trial judge should consider all arguments raised despite dismissing a claim - when trial judge should assess damages after finding that no loss was suffered

PROCEDURE - civil - abuse of process - application at hearing of appeal that claim should have been dismissed as abuse of process - whether open to defendant below to make application for dismissal of proceedings on appeal - discussion of Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75; [2005] QB 946