Rose v Tunstall & Ors (No 2) [2017] NSWSC 1425

Supreme Court New South Wales

Medium Neutral Citation: Rose v Tunstall & Ors (No 2) [2017] NSWSC 1425 Hearing dates: 18 October 2017 Date of orders: 18 October 2017 Decision date: 18 October 2017 Jurisdiction: Common Law Before: Campbell J Decision: (1) Under s 64 Civil Procedure Act 2005, grant leave to the plaintiff to file the third amended summons commencing an appeal incorporating proposed grounds 1, 2, 2F, 2G, 2H and 2K redrafted as necessary to conform with these reasons within 14 days, that is, by 1 November 2017;

(2) List the matter for further directions before the Common Law Registrar at 9am on Monday, 6 November 2017;

(3) Costs of the parties will be costs in the appeal. Catchwords: CIVIL PROCEDURE – Originating process – Amendment – Appeal from the Local Court – Whether grounds of appeal disclose the making of errors of law – Consideration of distinction between questions of fact and questions of law – Amendment allowed in part Legislation Cited: Associations Incorporation Act 1984 (NSW) Civil Procedure Act 2005 (NSW) Evidence Act 1995 (NSW) Local Court Act 2007 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Rose v Tunstall [2017] NSWSC 797 Category: Procedural and other rulings Parties: Mr Wayne John Rose (Plaintiff) Mr Robert Tunstall (as representative of the estate of the Late Arthur Tunstall) (First Defendant) Mr Patrick Edward Hailwood (Second Defendant) Mr Raymond James Birchell (Third Defendant) Mr David Raymond Birchell (Fourth Defendant) Mr Paul Cajentan Toweel (Fifth Defendant) Representation: Counsel: M Heraghty (Plaintiff) P Simpkins (Defendants)