Comlin Holdings Pty Ltd v Metlej Developments Pty Ltd - [2019] NSWCA 62

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Comlin Holdings Pty Ltd v Metlej Developments Pty Ltd [2019] NSWCA 62
Hearing dates: 19 March 2019
Decision date: 19 March 2019
Before: Basten JA
Decision:
Refuse the application for recusal.

Catchwords: CIVIL PROCEDURE – recusal application – whether reasonable apprehension of bias – exchange with counsel in the course of argument – nature of costs order – further listing of interlocutory application
Category: Procedural and other rulings
Parties: Comlin Holdings Pty Ltd (Applicant)
Metlej Developments Pty Ltd (First Respondent)
Nova Scotia Developments Pty Ltd (Second Respondent)
Kayrouz Constructions Pty Ltd (Third Respondent)
L.A.D.S. Developments Pty Ltd (Fourth Respondent)
Representation:
Counsel:
P King (Applicant)
J Stoljar SC; L Gor (First and Second Respondents)
A d’Arville (Third and Fourth Respondents)
Solicitors:
McKell Solicitors (Applicant)
Sachs Gerace Broome (First and Second Respondents
McLachlan Thorpe Partners (Third and Fourth Respondents)

File Number(s): 2018/185926
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Equity Division

Citation:

[2018] NSWSC 761

Date of Decision:

28 May 2018

Before:

Parker J

File Number(s):

2014/285405

Judgment

BASTEN JA: Mr King, for the appellant, has raised at the outset of the hearing today an application that I recuse myself from the further hearing of the matter. The application was first made by a notice of motion filed on 4 February 2019. That motion was before the Court on 7 February 2019. Despite an invitation to Mr King to indicate whether or not he wished to pursue the matter, he declined to pursue it at that time. He now raises it this morning.
The application is based, he says, on two matters which arose in the course of a directions hearing on 13 December 2018 and a third which arose on 7 February 2019. The first matter arose in the course of dealing with the respondents’ application for security for their costs of the appeal. On 12 November 2018 it was accepted that security would be provided in a certain amount and by security over one or more properties. The appellant read an affidavit of a third party, Mrs Betty Bassil, who offered to permit the lodging of a caveat over one of three unencumbered properties of which she was the registered proprietor as security for costs.
When the matter came before the Court on 13 December 2018, counsel for the respondents, Mr Gor, noted that there was a problem with respect to the use of the properties by way of security, they being subject to a testamentary trust. Mr King responded, describing Mr Gor as saying that to use the properties as security "is to suggest either there's some threatened breach of trust or a breach of trust and if so, what is the breach of trust? We don't know what his case really is."
There was further discussion by Mr King as to whether there was a breach of trust or not. I noted, in relation to that issue, that Mrs Bassil had sworn an affidavit…

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: [2019] NSWCA 62
Decision Date: 19 March 2019

CaseChat Overview and Summary

An application for recusal was brought by Comlin Holdings Pty Ltd against Justice Metlej in the Supreme Court of New South Wales. The application arose from an exchange between the judge and counsel during the course of argument concerning an interlocutory application, and the nature of a costs order made in relation to that application.

The central legal issue before Basten JA was whether there was a reasonable apprehension of bias on the part of Justice Metlej, such that his Honour ought to have recused himself from further involvement in the proceedings. This required an assessment of the exchange between the judge and counsel and the subsequent costs order in light of the established principles governing recusal applications.

Basten JA considered the principles of apprehended bias, which require a consideration of whether a fair-minded lay observer, having considered the facts, would have apprehended that the judge might not bring an impartial mind to the issues. His Honour found that the exchange during argument, viewed in its context, did not give rise to such an apprehension. Similarly, the nature of the costs order made was not of itself indicative of bias. Accordingly, the application for recusal was refused.

Orders

Orders of the court

Refuse the application for recusal.

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:	Comlin Holdings Pty Ltd v Metlej Developments Pty Ltd [2019] NSWCA 62
Hearing dates:	19 March 2019
Decision date:	19 March 2019
Before:	Basten JA
Decision:	Refuse the application for recusal.
Catchwords:	CIVIL PROCEDURE – recusal application – whether reasonable apprehension of bias – exchange with counsel in the course of argument – nature of costs order – further listing of interlocutory application
Category:	Procedural and other rulings
Parties:	Comlin Holdings Pty Ltd (Applicant) Metlej Developments Pty Ltd (First Respondent) Nova Scotia Developments Pty Ltd (Second Respondent) Kayrouz Constructions Pty Ltd (Third Respondent) L.A.D.S. Developments Pty Ltd (Fourth Respondent)
Representation:	Counsel: P King (Applicant) J Stoljar SC; L Gor (First and Second Respondents) A d’Arville (Third and Fourth Respondents) Solicitors: McKell Solicitors (Applicant) Sachs Gerace Broome (First and Second Respondents McLachlan Thorpe Partners (Third and Fourth Respondents)
File Number(s):	2018/185926
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Division Citation: [2018] NSWSC 761 Date of Decision: 28 May 2018 Before: Parker J File Number(s): 2014/285405