Byrne v Turner Freeman Lawyers - [2025] NSWCA 146

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Byrne v Turner Freeman Lawyers [2025] NSWCA 146
Hearing dates: 30 June 2025
Decision date: 04 July 2025
Before: Mitchelmore JA
Decision:
(1) The appeal is dismissed as incompetent.
(2) The appellant is to pay the costs of the first respondent and the second respondent.
(3) Direct that if any party wishes to press for a different order for costs, written submissions of no more than 3 pages should be provided to chambers by 4pm on 9 July 2025, with any reply of the same length to be provided by 14 July 2025, to be dealt with on the papers.

Catchwords:
APPEALS — leave to appeal — whether leave required — summary dismissal — whether summary dismissal interlocutory in nature — whether appeal otherwise by right

Legislation Cited:
Courts Legislation Amendment Act 1998 (NSW)
District Court Act 1973 (NSW), s 127
Statute Law (Miscellaneous Provisions) Act (No 3) 1992 (NSW)
Supreme Court Act 1970 (NSW), s 101
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 51.41

Cases Cited:
AB v State of New South Wales [2014] NSWCA 243
Clarke v Hicksons Lawyers [2021] NSWCA 100
Housman v Camuglia (2021) 104 NSWLR 615; [2021] NSWCA 106
Hynash Constructions Pty Ltd v BRP Industries Pty Ltd [2025] NSWCA 14
Macatangay v State of New South Wales (No 2) [2009] NSWCA 272
McGettigan v Coulter [2024] NSWCA 148
Option Holdings Pty Ltd v Meng Yu [2025] NSWCA 18
Poulos v Commonwealth Bank of Australia Ltd [2019] NSWCA 241
Singh v Khan [2021] NSWCA 281; 363 FLR 88

Category: Procedural rulings
Parties: Robert John Byrne (Appellant/Respondent on the motions)
Turner Freeman Lawyers (First respondent/Applicant on motion)
Adam Casselden SC (Second respondent/Applicant on motion)
Representation:
Counsel:
P Doyle Gray (Appellant)
A Horvath SC with S Scott (First respondent)
S Thomson (Second respondent)
Solicitors:
Wilson Fox Lawyers (Appellant)
Moray & Agnew Lawyers (First respondent)
Kennedys (Australasia) Partnership (Second respondent)

File Number(s): 2025/00097151
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Civil

Citation:

[2025] NSWDC 5
[2025] NSWDC 88

Date of Decision:

13 February 2025

Before:

Cole DCJ

File Number(s):

2024/202126

JUDGMENT

Each of the respondents to this appeal has filed a notice of motion seeking an order pursuant to r 51.41 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) dismissing the appellant’s notice of appeal, filed on 13 May 2025, on the basis that the appeal is incompetent.
The subject of the appeal is two decisions of Cole DCJ in proceedings that the appellant commenced against the respondents, who were his legal advisers during a dispute with an Owners Corporation. That dispute settled before trial in 2014 on terms that were documented, first, in a heads of agreement and, then, in a settlement deed. For present purposes it is sufficient to note that in broad terms the appellant alleged that the respondents were negligent when advising him about the proposed terms of settlement in the heads of…

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.

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Details

Case: [2025] NSWCA 146
Decision Date: 04 July 2025

CaseChat Overview and Summary

The appeal concerned a decision of the primary judge to summarily dismiss the appellant's claim against the respondents, Turner Freeman Lawyers and another party. The appellant sought to appeal this dismissal to the Court of Appeal.

The central legal issue before the Court of Appeal was whether the appeal against the summary dismissal was an appeal as of right or whether leave to appeal was required. This question turned on whether the primary judge's order for summary dismissal was interlocutory in nature.

Mitchelmore JA reasoned that an order for summary dismissal, which finally disposes of a party's claim without a trial on the merits, is final in nature. Consequently, an appeal against such an order is an appeal as of right, and leave to appeal is not required. However, the Court found that the appellant had failed to comply with the procedural requirements for bringing an appeal as of right, rendering the appeal incompetent.

Accordingly, the appeal was dismissed as incompetent, and the appellant was ordered to pay the costs of the respondents. The Court also provided directions for any party seeking a different costs order to make written submissions.

Orders

Orders of the court

(1) The appeal is dismissed as incompetent.

(2) The appellant is to pay the costs of the first respondent and the second respondent.

(3) Direct that if any party wishes to press for a different order for costs, written submissions of no more than 3 pages should be provided to chambers by 4pm on 9 July 2025, with any reply of the same length to be provided by 14 July 2025, to be dealt with on the papers.

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:	Byrne v Turner Freeman Lawyers [2025] NSWCA 146
Hearing dates:	30 June 2025
Decision date:	04 July 2025
Before:	Mitchelmore JA
Decision:	(1) The appeal is dismissed as incompetent. (2) The appellant is to pay the costs of the first respondent and the second respondent. (3) Direct that if any party wishes to press for a different order for costs, written submissions of no more than 3 pages should be provided to chambers by 4pm on 9 July 2025, with any reply of the same length to be provided by 14 July 2025, to be dealt with on the papers.
Catchwords:	APPEALS — leave to appeal — whether leave required — summary dismissal — whether summary dismissal interlocutory in nature — whether appeal otherwise by right
Legislation Cited:	Courts Legislation Amendment Act 1998 (NSW) District Court Act 1973 (NSW), s 127 Statute Law (Miscellaneous Provisions) Act (No 3) 1992 (NSW) Supreme Court Act 1970 (NSW), s 101 Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 51.41
Cases Cited:	AB v State of New South Wales [2014] NSWCA 243 Clarke v Hicksons Lawyers [2021] NSWCA 100 Housman v Camuglia (2021) 104 NSWLR 615; [2021] NSWCA 106 Hynash Constructions Pty Ltd v BRP Industries Pty Ltd [2025] NSWCA 14 Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 McGettigan v Coulter [2024] NSWCA 148 Option Holdings Pty Ltd v Meng Yu [2025] NSWCA 18 Poulos v Commonwealth Bank of Australia Ltd [2019] NSWCA 241 Singh v Khan [2021] NSWCA 281; 363 FLR 88
Category:	Procedural rulings
Parties:	Robert John Byrne (Appellant/Respondent on the motions) Turner Freeman Lawyers (First respondent/Applicant on motion) Adam Casselden SC (Second respondent/Applicant on motion)
Representation:	Counsel: P Doyle Gray (Appellant) A Horvath SC with S Scott (First respondent) S Thomson (Second respondent) Solicitors: Wilson Fox Lawyers (Appellant) Moray & Agnew Lawyers (First respondent) Kennedys (Australasia) Partnership (Second respondent)
File Number(s):	2025/00097151
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court Jurisdiction: Civil Citation: [2025] NSWDC 5 [2025] NSWDC 88 Date of Decision: 13 February 2025 Before: Cole DCJ File Number(s): 2024/202126