Marshall v Fleming [2014] NSWCA 64

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Marshall v Fleming [2014] NSWCA 64 Hearing dates: 29 July 2013 Decision date: 20 March 2014 Before: Bathurst CJ; Beazley P; Meagher JA Decision: (1)Grant the applicants leave to appeal limited to the three matters referred to in par [14] of this judgment. (2)Direct the applicants to file a Notice of Appeal limited to those matters within 7 days. (3)Leave to appeal otherwise refused. (4)Appeal allowed. (5)Set aside Orders 1 to 5 of the orders of the primary judge made on 17 May 2013. (6)Reserve the costs of the plaintiff's notice of motion for determination by a judge of the Common Law Division. (7)Direct the respondents to file such submissions as they wish to make on the question of costs of the appeal within 7 days. (8)Direct the applicants to file submissions in reply within 7 days. [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 - civil - interlocutory order -referral of questions of law to member of New York Panel of Referees - operation and effect of Uniform Civil Procedure Rules 2005 (NSW), rr 6.43, 6.44 and 20.14 and Memorandum of Understanding between Chief Justice of New South Wales and Chief Judge of the State of New York Legislation Cited: Civil Procedure Act 2005 (NSW), Sch 1, s 4 Supreme Court Act 1970 (NSW), s 25 Uniform Civil Procedure Rules 2005 (NSW), rr 6.43, 6.44, 20.14 and 20.15 Cases Cited: Fleming v Marshall [2011] NSWCA 86 National Mutual Holdings Pty Ltd v The Sentry Corporation (1989) 22 FCR 209 Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331 Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549 United States Trust Co of New York v Australia and New Zealand Banking Group Ltd (1995) 37 NSWLR 131 Category: Principal judgment Parties: Margaret Lesley Marshall (First Applicant) Kim Neil Marshall (Second Applicant) Francis G Fleming (First Respondent) Marc S Moller (Second Respondent) Steven R Pounian (Third Respondent) James P Kreindler (Fourth Respondent) David C Cook (Fifth Respondent) David Beekman (Sixth Respondent) Bianca I Rodriguez (Seventh Respondent) Noah H Kushlefsky (Eighth Respondent) Robert J Spragg (Ninth Respondent) Brian J Alexander (Tenth Respondent) Justin T Green (Eleventh Respondent) Representation: Counsel: C J Bevan / E W Young (Applicants) D F Villa (Respondents) Solicitors: Turner Freeman Lawyers (Applicants) Kennedys (Respondents) File Number(s): 2013/166332 Publication restriction: Nil Decision under appeal Jurisdiction: 9111 Citation: Marshall v Fleming [2013] NSWSC 566 Date of Decision: 2013-05-17 00:00:00 Before: Harrison J File Number(s): 2009/292935