Allsop P at [1]; Young JA at [2]; Sackville AJA at [37]
EX TEMPORE JUDGMENT DATE:
11 February 2010
DECISION:
(1) Leave to appeal is refused. (2) The applicants to pay the opponents' costs.
CATCHWORDS:
PROCEDURE- dismissal for want of prosecution- policy as disclosed in Civil Procedure Act 2005, ss 56-60- relevance of pre-2005 authority- paramount necessity of paying careful attention to ss 56-60- individual justice requires the elimination of undue delay- District Court Judicial Registrar dismissing proceedings on basis of plaintiffs' late reformulation of case and late production of amended (but defective) pleadings- review of appeal sought on different grounds- Judicial Registrar entitled to reach the conclusions reached.
Shao Chun Bi (First Applicant) Da Kang Ma (Second Applicant) Wei Bi (Third Applicant) George Mourad (First Opponent) Mourad Constructions Pty Ltd (Second Opponent) Lagrange Corporation Pty Ltd (Third Opponent)
FILE NUMBER(S):
CA 2009/00298355
COUNSEL:
C Jackson (Applicants) J S Drummond (Opponents)
SOLICITORS:
Edrison Lawyers (Applicants) Prime Lawyers (Opponents)
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
DC 1846/05
LOWER COURTJUDICIAL OFFICER:
Judicial Registrar McDonald
LOWER COURT DATE OF DECISION:
28 May 2009
CA 2009/00298355
ALLSOP P YOUNG JA SACKVILLE AJA
Thursday 11 February 2010
BI & ORS v MOURAD & ORS
Judgment
1 ALLSOP P: I will ask Young JA to deliver the first judgment.
2 YOUNG JA: This is an application for leave to appeal against a decision of Judicial Registrar McDonald of the District Court. The appeal lies to this Court under s 127 of the District Court Act 1973, which oddly enough makes an appeal from the Judicial Registrar lie to this court rather than, as one would have expected, review by the District Court itself.
3 The applicants are the registered proprietors of No 49 Reynolds Avenue, Bankstown, on which is erected a two-storey brick veneer house which they erected in 1992. In about the year 2000, the opponents, or one of them - it is immaterial as to who it was, so I will merely use the generic term “opponents” - who were the proprietors of Nos 45 to 47 Reynolds Avenue excavated as part of a project to erect a block of home units on No 47 close to the boundary of No 49.
4 The plaintiffs say they observed cracking of their building shortly after the excavation was performed, and that has continued.
5 There was some discussion early on with an insurance company who had insured the opponents' project, but the insurance company discovered by late 2004 that 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 Bi v Mourad
Sign in free to access the full text
Details
AGLC
Bi v Mourad [2010] NSWCA 17
Case
[2010] NSWCA 17
Decision Date
CaseChat Overview and Summary
The applicants, Bi and Mourad, sought leave to appeal a decision of the District Court of New South Wales. The Judicial Registrar had dismissed their proceedings for want of prosecution.
The primary legal issue before the appellate court was whether the Judicial Registrar had erred in dismissing the proceedings. This involved considering the overarching policy objectives of the *Civil Procedure Act 2005* (NSW), particularly sections 56 to 60, which mandate the just, quick, and cost-effective resolution of the real issues in dispute, and the elimination of undue delay. The court also had to determine the relevance of pre-2005 authorities in light of these statutory provisions.
The appellate court found that the Judicial Registrar was entitled to reach the conclusions that led to the dismissal. This was based on the applicants' late reformulation of their case and their late production of amended, yet defective, pleadings. The court emphasised the paramount necessity of paying careful attention to the provisions of sections 56 to 60 of the *Civil Procedure Act 2005*, highlighting that individual justice requires the elimination of undue delay.
Leave to appeal was refused, and the applicants were ordered to pay the opponents' costs.