Ah Sam v Mortimer - [2021] NSWCA 141

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ah Sam v Mortimer [2021] NSWCA 141
Hearing dates: 31 May 2021; 2 July 2021
Date of orders: 8 July 2021
Decision date: 08 July 2021
Before: Payne JA
Decision:
(1) Vacate the directions hearing listed at 9am on Friday 9 July 2021.
(2) Set aside orders 4, 5 and 6 made on 31 May 2021 and in lieu thereof order:
“4. Mr Mortimer to file and serve written submissions of no more than 20 pages by 28 July 2021.
5. Mr Ah Sam to file and serve written submissions in reply of no more than 10 pages by 4 August 2021.
6. Dispense with the requirements for the filing of red, orange, blue and black books and in lieu thereof order that four copies of a white folder or folders be filed by Mr Ah Sam with the Court by no later than 10 August 2021. Each folder is to contain the submissions, the notice of appeal, the judgment below and the transcript below together with copies of all the evidence led at the trial and copies of any written submissions made to the trial judge.”

Catchwords:
APPEALS – procedure – stay pending appeal

Category: Procedural rulings
Parties: Julius Iulai Ah Sam (Appellant)
Christopher John Mortimer (Respondent)
Representation:
Counsel:
Appellant in person
K Tang (Respondent)
Solicitors:
Russell Baxter Lawyers (Respondent)

File Number(s): 2021/146866
Publication restriction: Nil.
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity – Expedition List

Citation:

[2020] NSWSC 1763

Date of Decision:

9 December 2020

Before:

Sackar J

File Number(s):

2019/197941

Judgment

PAYNE JA: Given recent developments in the case management of this appeal it is desirable that I now formally describe the history of proceedings in this Court.
This is an appeal by Mr Ah Sam, who was and is self-represented, from a judgement of Sackar J delivered in December 2020: Mortimer v Ah Sam [2020] NSWSC 1763. A notice of appeal dated 9 March 2021 was filed on 24 May 2021.
The matter came before me in the referrals list on 31 May 2021. On that occasion I was persuaded, by a bare margin, that a stay of execution of the writ of possession should be granted until publication of the Court of Appeal’s reasons dealing with Mr Ah Sam’s notice of appeal. I set the matter down for hearing in this Court on 17 August 2021. The complete suite of orders I made on 31 May comprised the following:

The execution of the writ of possession granted by Sackar J be stayed until publication of the Court of Appeal’s reasons dealing with Mr Ah Sam’s notice of appeal dated 9 March 2021 and filed 24 May 2021.

Fix the matter for hearing with a 1 day estimate for Tuesday 17 August 2021.

Mr Ah Sam to file and serve written submissions of no more than 20 pages by 30 June 2021.

Mr Mortimer to file…

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 Ah Sam v Mortimer

Details

AGLC: Ah Sam v Mortimer [2021] NSWCA 141
Case: [2021] NSWCA 141
Decision Date: 08 July 2021

CaseChat Overview and Summary

Ah Sam (the appellant) sought a stay of proceedings pending an appeal against orders made by the primary judge on 31 May 2021. Mortimer (the respondent) was the other party to the proceedings. The application was heard by Payne JA in the Court of Appeal.

The primary legal issue before the Court was whether to grant a stay of the orders made on 31 May 2021, and consequently, to vary the directions for the filing of appeal materials. This involved considering the appropriate procedural steps to facilitate the hearing of the appeal.

Payne JA determined that the existing directions were not suitable for the efficient progression of the appeal. The court's reasoning led to the vacation of the scheduled directions hearing and the substitution of new orders. These new orders prescribed specific page limits and filing deadlines for written submissions from both parties, and importantly, dispensed with the usual requirement for multiple coloured books. Instead, the court ordered that four copies of a white folder, containing essential documents such as submissions, the notice of appeal, the judgment below, transcript, and all evidence from the trial, be filed by the appellant.

The court ordered that the directions hearing be vacated and set aside the previous orders regarding the filing of appeal materials. In their place, the court ordered that Mr Mortimer file written submissions of no more than 20 pages by 28 July 2021, and Mr Ah Sam file written submissions in reply of no more than 10 pages by 4 August 2021. Furthermore, the court dispensed with the requirement for red, orange, blue, and black books, ordering in lieu thereof that four copies of a white folder or folders be filed by Mr Ah Sam by 10 August 2021, containing specified documents.

Orders

Orders of the court

(1) Vacate the directions hearing listed at 9am on Friday 9 July 2021.

(2) Set aside orders 4, 5 and 6 made on 31 May 2021 and in lieu thereof order:

“4. Mr Mortimer to file and serve written submissions of no more than 20 pages by 28 July 2021.

5. Mr Ah Sam to file and serve written submissions in reply of no more than 10 pages by 4 August 2021.

6. Dispense with the requirements for the filing of red, orange, blue and black books and in lieu thereof order that four copies of a white folder or folders be filed by Mr Ah Sam with the Court by no later than 10 August 2021. Each folder is to contain the submissions, the notice of appeal, the judgment below and the transcript below together with copies of all the evidence led at the trial and copies of any written submissions made to the trial judge.”

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Ah Sam v Mortimer [2021] NSWCA 141
Hearing dates:	31 May 2021; 2 July 2021
Date of orders:	8 July 2021
Decision date:	08 July 2021
Before:	Payne JA
Decision:	(1) Vacate the directions hearing listed at 9am on Friday 9 July 2021. (2) Set aside orders 4, 5 and 6 made on 31 May 2021 and in lieu thereof order: “4. Mr Mortimer to file and serve written submissions of no more than 20 pages by 28 July 2021. 5. Mr Ah Sam to file and serve written submissions in reply of no more than 10 pages by 4 August 2021. 6. Dispense with the requirements for the filing of red, orange, blue and black books and in lieu thereof order that four copies of a white folder or folders be filed by Mr Ah Sam with the Court by no later than 10 August 2021. Each folder is to contain the submissions, the notice of appeal, the judgment below and the transcript below together with copies of all the evidence led at the trial and copies of any written submissions made to the trial judge.”
Catchwords:	APPEALS – procedure – stay pending appeal
Category:	Procedural rulings
Parties:	Julius Iulai Ah Sam (Appellant) Christopher John Mortimer (Respondent)
Representation:	Counsel: Appellant in person K Tang (Respondent) Solicitors: Russell Baxter Lawyers (Respondent)
File Number(s):	2021/146866
Publication restriction:	Nil.
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity – Expedition List Citation: [2020] NSWSC 1763 Date of Decision: 9 December 2020 Before: Sackar J File Number(s): 2019/197941