Court of Appeal Supreme Court New South Wales Medium Neutral Citation: HP Mercantile Pty Ltd v Kym and Paul Clements [2015] NSWCA 212 Hearing dates: 21 April 2015 Date of orders: 21 April 2015 Decision date: 23 July 2015 Before: Bathurst CJ at [1]; Beazley P at [9]; Gleeson JA at[10] Decision: Leave to appeal refused Catchwords: APPEAL – Appeal as of right restricted where amount in issue over $100,000 – Leave to appeal – Where no injustice caused to either party by the refusal of leave - Where amount in issue at time of hearing was $10 Cases Cited: Gillard v Hunter Wire Products Pty Ltd t/as Hunter Screen Products (No 2) [2001] NSWCA 450 Jensen v Ray [2011] NSWCA 247 Category: Principal judgment Parties: HP Mercantile Pty Ltd (Applicant) Kym Clements and Paul Clements (as executors of the estate of Phillip Clements) (Respondents) Representation: Counsel: B Walker SC / P Knowles (Applicant) R Newlinds SC / A d'Arville (Respondents) Solicitors: Versace McKenzie Lawyers (Applicant) Carles Solicitors (Respondents) File Number(s): 2014/148400 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division – Corporations List Citation: [2014] NSWSC 509 Date of Decision: 2 May 2014 Before: Black J File Number(s): 2009/289202 [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.] Judgment 1. BATHURST CJ: On 21 April 2015, this Court refused an application for leave to appeal from a judgment of Black J dismissing proceedings brought by the applicant, HP Mercantile Pty Ltd (the applicant), against the respondents, as executors of the estate of Phillip Clements (the respondents), in which the applicant had claimed damages from Mr Phillip Clements in the sum of $4,170,125.84. 2. The appeal was initially brought as of right, but on 10 April 2015, the parties executed a Deed which effectively resolved the appeal. 3. The Deed provided that each party release the other from all claims, with the intention that each party bear their own costs of the proceedings below and the costs of the appeal. 4. Notwithstanding the releases, the Deed sought to provide for the continuation of the appeal. Thus, it provided that should the appeal be successful, the applicant would accept $10 in full satisfaction of its claim. It also contained an agreement that if unsuccessful in the Court of Appeal, the respondent would not seek leave to appeal the decision to the High Court of Australia. It provided that if any High Court appeal brought by the applicant was successful, the applicant would accept $10 in full satisfaction of its claim. 5. It follows that, in reality, the appeal was not designed to quell any dispute between the parties or determine their rights against each other. Senior counsel for the applicant informed the Court that any judgment on the appeal may have precedential value in other proceedings. 6. The parties were correct in accepting that leave to appeal was required. Whatever the position was when the appeal was instituted, the amount in issue at the time of the hearing was less than $100,000, being in fact $10: Gillard v Hunter Wire Products Pty Ltd t/as Hunter Screen Products (No 2) [2001] NSWCA 450 at [11]-[12]; Jensen v Ray [2011] NSWCA 247 at [11]-[12]. 7. I joined in the order refusing leave to appeal because whatever the underlying merits, no injustice was caused to either party by the refusal of leave. So much is self-evident in the case of the respondent. In the case of the applicant, although the decision of the primary judge may cause it difficulty in litigating other cases, this may be overcome by the appellate process, which would be available in such cases. By contrast, granting leave to appeal where the proceedings, in reality, are hypothetical between the parties and designed solely to bind, as a matter of precedent, persons who are not parties to the litigation and who have no opportunity to be heard, seems to me an entirely inappropriate way for a Court to proceed and could itself be productive of substantial injustice. 8. In making these remarks, I do not seek to criticise counsel for either party, who very properly drew the Court's attention to the Deed and the fact that leave to appeal was necessary. I also do not intend to suggest that had leave been granted, the appeal would not have been properly argued. Nonetheless, it was inappropriate to grant leave. 9. BEAZLEY P: I agree with the Chief Justice. 10. GLEESON JA: My reasons for joining in the orders of the Court made on 21 April 2015 accord with those of the Chief Justice. ********** 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: 23 July 2015