McFee v Reilly [2018] NSWCA 322

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: McFee v Reilly [2018] NSWCA 322 Hearing dates: 27 September 2018 Decision date: 18 December 2018 Before: McColl JA at [1]; Leeming JA at [2]; Payne JA at [189] Decision: 1. Extend the time within which to appeal to 13 December 2017.

2. Grant leave to the first and third respondents to the appeal (Joseph Reilly and Dennis McGroder) to cross-appeal.

3. Appeal allowed in part.

4. Set aside orders 8-12 as proposed in [409] of the reasons for judgment published as [2017] NSWSC 1419 and made (with a minor modification to order 11) on 9 November 2017.

5. Otherwise dismiss the appeal.

6. Dismiss Mr McGroder's cross-appeal.

7. Subject to order 10 below, dismiss Joseph Reilly's cross-appeal.

8. Subject to order 10 below, order that each of the appellants and Mr McGroder pay Joseph Reilly's costs in this Court, on the basis that as between themselves, the appellants are liable to pay half of those costs and Mr McGroder is liable to pay the other half.

9. Note that the remaining issues for determination, pursuant to orders 21 and 22 of the orders made on 9 November 2017, extend to the time at which the value of Boronga is to be assessed.

10. In the event that any party wishes to be heard in relation to any further orders (including orders contrary to orders 7 and 8 above), grant leave to the parties to file and serve a notice of motion, any evidence, and short submissions in support within 28 days of today, with the other parties to respond within 14 days thereafter and with the notice of motion to be heard and determined on the papers and by a single Judge of Appeal unless submissions are made for some different course. Catchwords: APPEAL – challenges to findings of primary fact – whether adequate cross-examination to permit rejection of parties' and witnesses' evidence – whether primary judge grappled with competing evidence – challenges to findings of primary fact rejected