Alfaro v Nash - [2002] NSWCA 144

CITATION: Alfaro & Anor v Nash and Ors [2002] NSWCA 144 revised - 16/05/2002

FILE NUMBER(S): CA 40796/01

HEARING DATE(S): 14/05/02, 15/05/02

JUDGMENT DATE:
15 May 2002

PARTIES :

Pedro Alfaro & Anor - Claimants
Sally Sussan Nash T/as Sally Nash & Co Lawyers & Co & Ors - Opponents

JUDGMENT OF: Hodgson JA at 1 and 16; Brownie AJA at 2

LOWER COURT JURISDICTION : Supreme Court

LOWER COURT
FILE NUMBER(S) : 20360/01

LOWER COURT
JUDICIAL OFFICER : McClellan J

COUNSEL: Claimant in person
Ms K Rees - 1,4,8,9 Opponents
Mr G Bartley - 12,13,14,15 Opponents

SOLICITORS: Mallesons Stephen Jacques - 1,2,3,4,8,9 Opponents
Mr P Stern - Ernst & Young 5,6,7 Opponents
Ms A Cassimaty - Conway McCallum 10,11 Opponents
I V Knight - 12,13,14,15 - Opponents

CATCHWORDS: No question of principle

LEGISLATION CITED: Bankruptcy Act

CASES CITED:
The Queen v Applebee (1995) 79 A Crim R 554

DECISION: Limited leave to appeal granted - orders - paragraph 16

40796/01

HODGSON JA
BROWNIE AJA
15 May 2002

Pedro ALFARO & ANOR v Sally Sussan NASH T/as SALLY NASH & CO LAWYERS & ORS

Judgment

1 HODGSON J: I will ask Brownie AJ to deliver the judgment.

2 BROWNIE AJ: The claimants seek leave to appeal from a decision of McClellan J who dismissed an appeal from a decision of Master Harrison dismissing proceedings number 20360/01 in which the claimants sued the opponents. There are two quite separate categories of events the subject of that action.

3 In the first category there are a variety of claims made, all apparently having arisen ultimately from some events in 1990 when the third and fourth opponents, who were then the solicitors acting for the claimants are said to have acted wrongfully in relation to some District Court proceedings with the consequence that the claimants suffered harm.

4 The claimants sued these and other opponents in proceedings number 20806/96. There were difficulties with the form of the statement of claim and it was amended on various occasions. The last version of it was struck out by order of Master Malpass. Graham AJ dismissed an appeal from that decision and the claimants purported to appeal from that decision, without having first obtained leave.

5 The respondents to that appeal objected and the Court of Appeal then refused leave to appeal from the decision of Graham AJ and ordered that the claimants not file any further documents in that case without the leave of a judge.

6 During the course of those proceedings, various costs orders were made against the claimants. Proceedings were taken to enforce those orders and ultimately the Federal Court made a sequestration order. An application to review that order was unsuccessful, and an order was made for examination of the claimant. He did not appear to answer that summons and a warrant for his arrest was issued and later executed.

7 In proceedings 20360/01 the claimants brought various claims asserting wrongdoing of various kinds on the part of various opponents concerning…

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 Alfaro v Nash

Details

AGLC: Alfaro v Nash [2002] NSWCA 144
Case: [2002] NSWCA 144
Decision Date: 15 May 2002

CaseChat Overview and Summary

The parties in this matter were Alfaro (the applicant) and Nash (the respondent). The dispute concerned an application for leave to appeal against orders made by a lower court. The case was heard in the Court of Appeal of New South Wales, with judgment delivered by Hodgson JA and Brownie AJA.

The primary legal issue before the Court of Appeal was whether to grant limited leave to appeal. This involved assessing whether there was a sufficient basis to permit an appeal against the existing orders, considering the nature of the case and the grounds advanced by the applicant.

The Court of Appeal considered the application for leave to appeal. While the specific details of the dispute and the grounds for appeal are not elaborated upon in the provided text, the court's decision to grant limited leave indicates that it found arguable points or a compelling reason to allow the appeal to proceed on specific aspects. The court ultimately granted limited leave to appeal.

Orders

Orders of the court

Limited leave to appeal granted - orders - paragraph 16

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Alfaro & Anor v Nash and Ors [2002] NSWCA 144 revised - 16/05/2002
FILE NUMBER(S):	CA 40796/01
HEARING DATE(S):	14/05/02, 15/05/02
JUDGMENT DATE:	15 May 2002
PARTIES :	Pedro Alfaro & Anor - Claimants Sally Sussan Nash T/as Sally Nash & Co Lawyers & Co & Ors - Opponents
JUDGMENT OF:	Hodgson JA at 1 and 16; Brownie AJA at 2

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	20360/01
LOWER COURT JUDICIAL OFFICER :	McClellan J

COUNSEL:	Claimant in person Ms K Rees - 1,4,8,9 Opponents Mr G Bartley - 12,13,14,15 Opponents
SOLICITORS:	Mallesons Stephen Jacques - 1,2,3,4,8,9 Opponents Mr P Stern - Ernst & Young 5,6,7 Opponents Ms A Cassimaty - Conway McCallum 10,11 Opponents I V Knight - 12,13,14,15 - Opponents
CATCHWORDS:	No question of principle
LEGISLATION CITED:	Bankruptcy Act
CASES CITED:	The Queen v Applebee (1995) 79 A Crim R 554
DECISION:	Limited leave to appeal granted - orders - paragraph 16