Palermo Seafoods Pty Ltd v Lunapas Pty Ltd [2016] NSWCA 82

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Palermo Seafoods Pty Ltd v Lunapas Pty Ltd [2016] NSWCA 82 Hearing dates: 7 April 2016 Decision date: 19 April 2016 Before: Simpson JA and Sackville AJA at [1], Emmett AJA at [36] Decision: (1) Appeal allowed; (2) Set aside the orders made by Young AJA on 26 September 2014 dismissing the proceedings with costs; (3) Direct that there be a new trial limited to the appellant's claim for damages by reason of the respondents' use of and failure to return the appellant's plant and equipment ("the appellant's claim"); (4) Further direct that the new trial be conducted on the basis that the parties do not challenge the findings of fact made in the judgment of Young AJA delivered on 16 June 2014, insofar as those findings are relevant to the appellant's claim; (5) The respondents pay the appellant's costs of the appeal; (6) The respondents, if otherwise qualified, have a certificate under the Suitors' Fund Act 1951 (NSW). Catchwords: PRACTICE AND PROCEDURE – appeal – pleadings – whether appellant's claim for damages for wrongful use of and denial of access to plant and equipment was adequately pleaded at trial – whether primary judge erred in failing to address case pleaded and presented by appellant

APPEAL – power to order a new trial – Supreme Court Act 1970 (NSW), s 75A(10) – whether substantial wrong or miscarriage of justice if new trial not ordered – Uniform Civil Procedure Rules (2005), r 51.53 – new trial limited to appellant's claim for damages for wrongful use of and denial of access to plant and equipment – appeal allowed Legislation Cited: Conveyancing Act 1919 (NSW), s 127 Suitors' Fund Act 1951 (NSW) Supreme Court Act 1970 (NSW), s 75A(10) Uniform Civil Procedure Rules 2005 (NSW), r 51.53 Cases Cited: Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402 Category: Principal judgment Parties: Palermo Seafoods Pty Ltd (Appellant) Lunapas Pty Ltd (First Respondent) Luciano Menniti (Second Respondent) Representation: Counsel: F Palermo (with M Fern) (Appellant) B Wright (Respondents)