Williamson v Scarano [2012] NSWCA 432

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Williamson v Scarano [2012] NSWCA 432 Hearing dates: 12 December 2012 Decision date: 20 December 2012 Before: Meagher JA at [1]; Hoeben JA at [38]; Ward JA at [39] Decision: (1) Appeal allowed in part. (2) Set aside orders 3, 4, 5, 7, 8 and 9 made by Bryson AJ on 4 November 2011. (3) Order that the respondent's notice of motion of 1 July 2011 be dismissed. (4) Order that the appellant pay 90 per cent of the respondent's 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: PRACTICE AND PROCEDURE - appeal against refusal of application for leave to amend pleadings - proposed amendment previously pleaded, abandoned and sought to be revived in context of application for summary dismissal - no explanation as to why sought to be revived - primary judge entitled to infer proposed amendments made to stave off summary dismissal Legislation Cited: Real Property Act 1900 Uniform Civil Procedure Rules 2005 rr 13.4, 42.7(2) Cases Cited: Co-Ownership Land Development Pty Ltd v Queensland Estates Pty Ltd (1973) 47 ALJR 519 David Williamson v Vince Scarano [2011] NSWSC 1318 Delaforce v Simpson-Cook [2010] NSWCA 84; 78 NSWLR 483. Fiduciary Ltd v Morningstar Research Pty Ltd [2002] NSWSC 432; 55 NSWLR 1 Gillett v Holt [2001] Ch 210 Giumelli v Giumelli [1999] HCA 10; 196 CLR 101 Holloway v McFeeters [1956] HCA 25; 94 CLR 470 House v The King [1936] HCA 40; 55 CLR 499 Poignand v NZI Securities Australia Pty Ltd (1992) 37 FCR 363 Williamson v Scarano [2010] NSWSC 975 Category: Principal judgment Parties: David Williamson (Appellant) Vince Scarano (Respondent) Representation: Counsel: G McVay (Appellant) D E Baran (Respondent) Solicitors: Mills Oakley Lawyers (Appellant) Jacovou & Co, Hurstville (Respondent) File Number(s): 2010/257420 Decision under appeal Citation: David Williamson v Vince Scarano [2011] NSWSC 1318 Date of Decision: 2011-11-04 00:00:00 Before: Bryson AJ File Number(s): 2010/257420