Bar-Mordecai v Hillston & Ors - [2000] NSWCA 120

NEW SOUTH WALES COURT OF APPEAL

CITATION: BAR-MORDECAI v HILLSTON & ORS [2000] NSWCA 120

FILE NUMBER(S):
40553/99

HEARING DATE(S): 9 December 1999, 1 February 2000

JUDGMENT DATE: 16/05/2000

PARTIES:
Michael Jacob Bar-Mordecai - Claimant
Alan David James Hillston - First Opponent
Sue May Florence Choo and Robert John Cruikshanks - Second Opponents

JUDGMENT OF: Sheller JA Stein JA Giles JA

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): 3240/98

LOWER COURT JUDICIAL OFFICER: Master McLaughlin

COUNSEL:
M J Bar-Mordecai - Claimant - In Person
J B Whittle/B J Burke - Opponents

SOLICITORS:
Claimant - In person
Shaw McDonald - Opponents

CATCHWORDS:
PRACTICE & PROCEDURE - costs - where summons for leave to appeal filed incorrectly in Court of Appeal and claimant should have known appeal lay to single Judge in Equity - Summons dismissed as incompetent - ND

LEGISLATION CITED:
Conveyancing Act 1919
Supreme Court Act 1970

DECISION:
Application for leave to appeal is dismissed as incompetent
Claimant to pay costs of opponents incurred after 20 August 1999.

JUDGMENT:

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40553/99
ED 3240/98
SHELLER JA
STEIN JA
GILES JA

Tuesday, 16 May 2000

BAR-MORDECAI v HILLSTON & ORS

JUDGMENT

THE COURT: On 9 December 1999 the Court dismissed as incompetent this summons filed by the claimant, Dr Bar-Mordecai, on 26 July 1999, for leave to appeal. Left outstanding was the question of costs. The parties were given the opportunity to file further evidence. The matter was then stood over for directions before Sheller JA on 1 February 2000. By that date the opponents had filed three affidavits, two by Mr Courtenay of 10 January and 13 January 2000 and one by Mr Hart of 13 January 2000. On 1 February these affidavits were taken as read. The claimant took no objection to the affidavits except on the general ground of relevance. Sheller JA directed that any submissions that the opponents wished to put in relation to the question of costs should be made in writing to be filed and served on the claimant on or before 11 February 2000 and that any further submissions that the claimant wish to make should be filed and served on the opponents on or before 25 February 2000. The intent was that the Court would consider the evidentiary material and the submissions put at the same time as it dealt with the main appeal. The claimant did not file any affidavits. Both the opponents and the claimant filed written submissions.
The application for leave to appeal was from a decision of Master McLaughlin of 16 April 1999 when the Master appointed trustees for sale of the property known as 30 Eastbourne Avenue, Clovelly pursuant to s66G of the Conveyancing Act 1919. At the same time the Master dismissed the claimant’s motion that the proceedings for the appointment of trustees for sale be stayed.
In his affidavit of 13 January 2000, Mr Courtenay said that having re-examined his file and…

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.

Keep reading for free

Create a free CaseChat account to read Bar-Mordecai v Hillston & Ors and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2000] NSWCA 120
Decision Date: 16 May 2000

CaseChat Overview and Summary

The parties involved were the claimant, Bar-Mordecai, and the respondents, Hillston & Ors. The dispute concerned the appropriate court in which to file a summons for leave to appeal. The claimant had filed the summons in the Court of Appeal, but it was argued that the appeal should have been brought before a single Judge in Equity. The matter came before the Court of Appeal.

The central legal issue before the Court of Appeal was whether the summons for leave to appeal had been filed in the correct forum. Specifically, the court had to determine if the claimant ought to have known that the appeal lay to a single Judge in Equity, rather than the Court of Appeal, and consequently, whether the summons was competent.

The Court of Appeal reasoned that the claimant should have been aware of the proper appellate pathway. By filing the summons in the Court of Appeal, the claimant had proceeded incorrectly, rendering the summons incompetent. The court applied the principle that procedural rules regarding the correct forum for appeals must be adhered to, and failure to do so can result in the dismissal of the proceedings.

Consequently, the Court of Appeal dismissed the application for leave to appeal as incompetent. The claimant was ordered to pay the costs of the opponents incurred after 20 August 1999.

Orders

Orders of the court

Application for leave to appeal is dismissed as incompetent

Claimant to pay costs of opponents incurred after 20 August 1999.

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.