Legal Research
Cases
Abdel-Messih v Marshall

Abdel-Messih v Marshall

Case [2018] NSWSC 648 11 May 2018

Statutory Interpretation

Administrative Law

Civil Litigation & Procedure

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Abdel-Messih v Marshall [2018] NSWSC 648
Hearing dates: 29 September 2017
Date of orders: 11 May 2018
Decision date: 11 May 2018
Jurisdiction: Common Law
Before: Walton J
Decision:
(1) The summons filed 19 July 2017 is dismissed.
(2) Costs are reserved.
Catchwords: APPEAL – civil – appeal from the NSW Civil and Administrative Tribunal Appeal Panel – s 83 of the Civil and Administrative Tribunal Act 2013 – s 69 of the Supreme Court Act 1970 – principles governing grant of leave to appeal – discretion of the Tribunal pursuant to s 107 of the Residential Tenancies Act 2010 – construction of s 107 of the Residential Tenancies Act 2010 – whether questions of law were raised as to the miscarrying of a discretion under s 107 of the Residential Tenancies Act 2010 – procedural fairness in Appeal Panel proceedings – jurisdiction of Appeal Panel to make an order for payment of a bond – contention of bias of Appeal Panel – whether Appeal Panel should have issued certificate pursuant to s 128 of the Evidence Act 1995 – leave to appeal granted – incompetent grounds – leave to appeal refused – no error of law –summons dismissed – costs reserved
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Supreme Court Act 1970 (NSW)
Residential Tenancies Act 2010 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: Abdel-Messih v Marshall [2017] NSWCATAP 136
Altaranesi v Sydney Local Health District [2012] NSWCA 69
Attia v Health Care Complaints Commission [2017] NSWSC 1066
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Bronze Wing International Pty Ltd v Safe Work NSW [2017] NSWCA 41
Cain v New South Wales Land and Housing Corporation (2014) 86 NSWLR 1
Gan v Shop 3, 228-230 Hanvaylee Parade Kensington Pty Ltd [2017] NSWSC 1322
House v King (1936) 55 CLR 499
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309
Macdonald v Macdonald [2017] NSWSC 809
Nominal Defendant v Saleh [2011] NSWCA 16
Taylor v Public Service Board (1976) 137 CLR 208
Wende v Horwarth (No 2) (2015) 91 NSWLR 588
Zelden v Sewell; Henamast Pty Ltd v Sewell [2011] NSWCA 56
Category: Principal judgment
Parties: Bishoy Abdel-Messih (plaintiff)
Simon Arthur Marshall (defendant)
Representation: Solicitors:
Public Interest Advocacy Centre (defendant)

File Number(s): 2017/219924
Decision under appeal

Court or tribunal:

NSW Civil and Administrative Tribunal

Jurisdiction:

Appeal Panel

Citation:

[2017] NSWCATAP 136

Date of Decision:

21 June 2017

Before:

S Westgarth, Deputy PresidentR Titteron, Senior Member

File Number(s):

AP 17/05534

Judgment

HIS HONOUR: This is an appeal from a decision made by an Appeal Panel constituted by Deputy President Stuart Westgarth and Senior Member Robert Titterton of the NSW Civil and Administrative Tribunal (“the Appeal Panel”). The decision was regarding a dispute over a ‘break fee’ under a standard form Residential Tenancy Agreement dated 23 August…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abdel-Messih v Marshall

Details

AGLC: Abdel-Messih v Marshall [2018] NSWSC 648
Case: [2018] NSWSC 648
Decision Date: 11 May 2018

CaseChat Overview and Summary

The appeal was brought by the respondent, Marshall, against a decision of the NSW Civil and Administrative Tribunal Appeal Panel. The dispute originated from a matter under the Residential Tenancies Act 2010, where the appellant, Abdel-Messih, sought a refund of a bond from Marshall. The appeal panel had dismissed the application for the bond refund, and Abdel-Messih sought leave to appeal to the Supreme Court. The court had to determine the principles governing the grant of leave to appeal from the Tribunal, the discretion of the Tribunal pursuant to section 107 of the Act, and whether procedural fairness was observed in the appeal proceedings.

The primary legal issues were whether the appeal panel had correctly exercised its discretion under section 107 of the Residential Tenancies Act 2010, and if the appeal panel proceedings were conducted with procedural fairness. Additionally, the court had to consider whether the appeal panel had jurisdiction to order payment of the bond and whether there was any bias in the panel’s decision. The court also examined whether the appeal panel should have issued a certificate under section 128 of the Evidence Act 1995.

The court found that while the grounds for appeal were incompetent, it granted leave to appeal to address specific questions of law concerning the miscarrying of a discretion under section 107 of the Residential Tenancies Act 2010. However, upon reviewing the appeal, the court determined there was no error of law in the appeal panel’s decision. The appeal was dismissed, and the summons was dismissed with costs reserved. The court held that the appeal panel had correctly exercised its discretion and that there was no procedural unfairness in the proceedings. The court also found no basis for the contention of bias and that no certificate under section 128 of the Evidence Act 1995 was required.

Orders