Baba v Sheehan - [2020] NSWCA 361

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Baba v Sheehan [2020] NSWCA 361
Hearing dates: 20 November 2020
Date of orders: 20 November 2020
Decision date: 20 November 2020
Before: Brereton JA at [1] & [11]
Emmett AJA at [7]
Simpson AJA at [10]
Decision:
Application for leave to amend the Notice of Appeal be refused.

Catchwords:
CIVIL PROCEDURE – Court of Appeal – Application for leave to amend notice of appeal to add additional ground alleging invalid appointment of trustee – Where issue not raised before primary judge – Where no practical utility in agitating ground in circumstances where validity of subsequent appointment of same trustee unchallenged – Where application not made until day of hearing – Leave refused

Category: Procedural rulings
Parties:
Anna Monica Baba (first appellant)
Mustafa Sedat Baba (second appellant)
Paul Sheehan (first respondent)
Rijalu Pty Ltd (second respondent)
Smart Street Optical Pty Limited (third respondent)
Silktote Pty Limited (fourth respondent)
Representation:
Counsel:
Phillip James Beazley (solicitor) (appellants)
Ireland QC (solicitor) (respondents)
Solicitors:
Beazley Lawyers (appellants)
McGirr Lawyers (respondents)

File Number(s): 2019/323678
Decision under appeal

Court or tribunal:

NSW Supreme Court

Jurisdiction:

Equity Division – Corporations List

Citation:

[2019] NSWSC 1281

Date of Decision:

26 September 2019

Before:

Parker J

File Number(s):

2017/252703

Judgment – ex tempore

Application for leave to amend notice of appeal; see transcript p 7

BRERETON JA: Before the court, at the outset of the hearing of this appeal when it was called on for hearing, is an oral application on behalf of the appellant for leave to amend the notice of appeal by adding an additional ground, to the following effect:

"His Honour erred in upholding the validity of the appointment of the fourth respondent Silktote, as trustee of the SSO Trust."

In the course of argument on the application for leave to amend, it appeared that what was sought to be raised under the rubric of this ground went not so much to what has been called the ‘fraud on a power’ ground, which is said to be included in the extant grounds of appeal, but to aspects of the formal validity of the purported appointment of the fourth respondent as trustee in October 2016.
Before the primary judge, there was an evidentiary dispute as to whether an instrument in writing, within the meaning of the trust deed, had been delivered, giving effect to the purported removal of the previous trustee and appointment of the replacement trustee. As a matter of fact, his Honour found that such a document had been delivered. To my mind, his Honour's reference in para 40 of the judgment to a notice, when read in the context of what is said in para 41 of the judgment referring to an instrument, indicates that his Honour intended, by reference to a notice in para 42, to find that a sufficient instrument compliant with the requirements of the trust deed had been delivered.
It does not appear from the primary judgment, and it…

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 Baba v Sheehan

Details

AGLC: Baba v Sheehan [2020] NSWCA 361
Case: [2020] NSWCA 361
Decision Date: 20 November 2020

CaseChat Overview and Summary

In *Baba v Sheehan*, the Court of Appeal considered an application by the appellant for leave to amend their notice of appeal. The proposed amendment sought to add a new ground of appeal alleging the invalid appointment of a trustee. This issue had not been raised before the primary judge.

The central legal issue before the Court of Appeal was whether to grant leave to amend the notice of appeal to include the ground concerning the trustee's appointment. The Court had to consider the timing of the application, which was made on the day of the hearing, and the practical utility of agitating the ground given that the validity of a subsequent appointment of the same trustee remained unchallenged.

The Court refused leave to amend. Their Honours reasoned that the application was made at a late stage and that there was no practical utility in allowing the appeal to proceed on a ground that would not ultimately affect the outcome, particularly where the validity of a subsequent appointment of the same trustee was not in dispute. The principles applied focused on the efficient administration of justice and the avoidance of futile litigation.

Consequently, the Court of Appeal ordered that the application for leave to amend the Notice of Appeal be refused.

Orders

Orders of the court

Application for leave to amend the Notice of Appeal be refused.

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.

Medium Neutral Citation:	Baba v Sheehan [2020] NSWCA 361
Hearing dates:	20 November 2020
Date of orders:	20 November 2020
Decision date:	20 November 2020
Before:	Brereton JA at [1] & [11] Emmett AJA at [7] Simpson AJA at [10]
Decision:	Application for leave to amend the Notice of Appeal be refused.
Catchwords:	CIVIL PROCEDURE – Court of Appeal – Application for leave to amend notice of appeal to add additional ground alleging invalid appointment of trustee – Where issue not raised before primary judge – Where no practical utility in agitating ground in circumstances where validity of subsequent appointment of same trustee unchallenged – Where application not made until day of hearing – Leave refused
Category:	Procedural rulings
Parties:	Anna Monica Baba (first appellant) Mustafa Sedat Baba (second appellant) Paul Sheehan (first respondent) Rijalu Pty Ltd (second respondent) Smart Street Optical Pty Limited (third respondent) Silktote Pty Limited (fourth respondent)
Representation:	Counsel: Phillip James Beazley (solicitor) (appellants) Ireland QC (solicitor) (respondents) Solicitors: Beazley Lawyers (appellants) McGirr Lawyers (respondents)
File Number(s):	2019/323678
Decision under appeal	Court or tribunal: NSW Supreme Court Jurisdiction: Equity Division – Corporations List Citation: [2019] NSWSC 1281 Date of Decision: 26 September 2019 Before: Parker J File Number(s): 2017/252703