Johnston v Brightstars Holding Company Pty Ltd [2013] NSWCA 341

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Johnston v Brightstars Holding Company Pty Ltd [2013] NSWCA 341 Hearing dates: 14 October 2013 Decision date: 15 October 2013 Before: Macfarlan JA Decision: Reasons given for the making of orders on 14 October 2013. [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: PROCEDURE - appellants issued notices to respondents to produce documents at appeal hearing - notices set aside as abuse of process - no reasonable prospect that documents would be admitted into evidence on appeal - documents assumed by appellants to reveal respondents' intended meaning of letter to appellants containing terms of contract - subjective intentions of parties irrelevant to construction of written contract - no adequate explanation for documents not being sought at first instance Legislation Cited: Supreme Court Act 1970 Cases Cited: Allesch v Maunz [2000] HCA 40; 203 CLR 172 Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; 149 CLR 337 Coulton v Holcombe [1986] HCA 33; 162 CLR 1 D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 Levy v Bablis [2013] NSWCA 28 R v Baines [1909] 1 KB 258 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 Category: Procedural and other rulings Parties: Paul Arthur Johnston (First Appellant) Blair Massey Warren (Second Appellant) Brightstars Holding Company Pty Ltd (First Respondent) Peter Wilson (Second Respondent) Representation: Counsel: C A Botsman (Appellants) C Harris (Respondents) Solicitors: Kemp Strang Lawyers (Appellants) Willis & Bowring (Respondents) File Number(s): CA 2012/350075 (and 2012/348802) Decision under appeal Jurisdiction: 9111 Citation: Brightstars Holding Co Pty Ltd v Johnston [2012] NSWSC 929 - 14 August 2012 Brightstars Holding Co Pty Ltd v Johnston; In the matter of Brightstars Freehold Pty Ltd [2012] NSWSC 1228 - 12 October 2012 Before: Stevenson J File Number(s): SC 2011/324919