Damjanovic v Sharpe Hume & Co (Services) Pty Ltd - [2001] NSWCA 130

CITATION: Damjanovic v. Sharpe Hume & Co. (Services) Pty. Ltd, .Damjanofic v. York Agencies Pty. Ltd., Damjanovic v. Rosier & Ors, Damjanovic v. Z. Spehar, Damjanovic v. I. Spehar [2001] NSWCA 130

FILE NUMBER(S): CA 40719/00, 40720/00, 40721/00, 40722/00, 40723/00

HEARING DATE(S): 30 April 2001

JUDGMENT DATE:
30 April 2001

PARTIES :

Mojmir Damjanovic - claimant in each case
Sharpe Hume & Co. (Services) Pty. Ltd. - opponent in 40719/00
York Agencies Pty. Ltd. - opponent in 40720/00
Peter William Rosier, Jeffrey James Mead, Frank Bronco Zobec - opponents in 40721/00
Zelka Sephar - opponent in 40722/00
Ivan Sephar - opponent in 40723/00

JUDGMENT OF: Hodgson JA at 1-18, 20; Rolfe AJA at 19

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : 2410/00

LOWER COURT
JUDICIAL OFFICER : Gibb DCJ

COUNSEL: The claimant was unrepresented.
Mr. M.J. Cohen appeared for opponents in 40719/00, 40720/00 and 40721/00.
Mr. and Mrs. Spehar were unrepresented

SOLICITORS: Sharpe Partners Legal, Sydney for opponents in 40719/00, 40720/00 and 40721/00

CATCHWORDS: APPEALS - District Court decision - Decision on separate question - Proceedings dismissed - Whether leave to appeal necessary. D.

LEGISLATION CITED: District Court Act s.127
Supreme Court Act ss.101, 103

DECISION: See orders at end of judgment

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA40719/00
CA40720/00
CA40721/00
CA40722/00
CA40723/00

Monday 30 April 2001

DAMJANOVIC V. SHARPE HUME & CO. (SERVICES) PTY. LTD.

DAMJANOVIC V. YORK AGENCIES PTY. LTD.

DAMJANOVIC V. ROSIER & ORS.

DAMJANOVIC V. Z. SPEHAR

DAMJANOVIC V. I. SPEHAR

JUDGMENT

On application for leave to appeal

1 HODGSON JA: We have before us a summons for leave to appeal from a decision of Judge Gibb in the District Court which was given on 11 August 2000.

2 The judgment arose out of a determination of a question of fact pursuant to the provisions of Part 26 Rule 5AA(2) of the District Court Rules, and in that sense was a decision on a separate question rather than a hearing of the whole case. However, the result of the decision of this separate question of fact was an order dismissing the proceedings, those proceedings in fact being five separate proceedings seeking payment of certain debts. It seems that essentially the plaintiff’s claim was that each of the defendants in each of the proceedings was liable for the whole of the debts in question.

3 The question of fact which was determined giving rise to the dismissal of the proceedings was essentially whether a signature of the plaintiff on a deed of assignment of debt was or was not a forgery. Had the finding been that the signature was a forgery, then that would have left it open to the plaintiff to proceed with the claim for the debts in question. However, the finding of the District Court Judge was that the signature was not a forgery, but was a genuine signature of the plaintiff, and that accordingly the debts were no longer debts owing to the plaintiff, but…

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 Damjanovic v Sharpe Hume & Co (Services) Pty Ltd

Details

AGLC: Damjanovic v Sharpe Hume and Co. (Services) Pty. Ltd, .Damjanofic v York Agencies Pty. Ltd., Damjanovic v Rosier and Ors, Damjanovic v Z. Spehar, Damjanovic v I. Spehar [2001] NSWCA 130
Case: [2001] NSWCA 130
Decision Date: 30 April 2001

CaseChat Overview and Summary

The parties to this appeal were Damjanovic (the appellant) and Sharpe Hume & Co (Services) Pty Ltd (the respondent). The dispute concerned an appeal from a decision of the District Court of New South Wales, which had dismissed the appellant's proceedings after determining a separate question. The appeal was heard in the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether leave to appeal was necessary from the District Court's decision to dismiss the appellant's proceedings, which had been based on the determination of a separate question.

The Court of Appeal held that the District Court's order dismissing the appellant's proceedings was a final order, and therefore, an appeal from that order required leave. The Court reasoned that the determination of the separate question had the effect of finally disposing of the appellant's claim, even though it was made at an interlocutory stage of the proceedings. Consequently, the appeal was dismissed for want of jurisdiction, as leave to appeal had not been sought or granted.

Orders

Orders of the court

See orders at end of judgment

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.

CITATION:	Damjanovic v. Sharpe Hume & Co. (Services) Pty. Ltd, .Damjanofic v. York Agencies Pty. Ltd., Damjanovic v. Rosier & Ors, Damjanovic v. Z. Spehar, Damjanovic v. I. Spehar [2001] NSWCA 130
FILE NUMBER(S):	CA 40719/00, 40720/00, 40721/00, 40722/00, 40723/00
HEARING DATE(S):	30 April 2001
JUDGMENT DATE:	30 April 2001
PARTIES :	Mojmir Damjanovic - claimant in each case Sharpe Hume & Co. (Services) Pty. Ltd. - opponent in 40719/00 York Agencies Pty. Ltd. - opponent in 40720/00 Peter William Rosier, Jeffrey James Mead, Frank Bronco Zobec - opponents in 40721/00 Zelka Sephar - opponent in 40722/00 Ivan Sephar - opponent in 40723/00
JUDGMENT OF:	Hodgson JA at 1-18, 20; Rolfe AJA at 19

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	2410/00
LOWER COURT JUDICIAL OFFICER :	Gibb DCJ

COUNSEL:	The claimant was unrepresented. Mr. M.J. Cohen appeared for opponents in 40719/00, 40720/00 and 40721/00. Mr. and Mrs. Spehar were unrepresented
SOLICITORS:	Sharpe Partners Legal, Sydney for opponents in 40719/00, 40720/00 and 40721/00
CATCHWORDS:	APPEALS - District Court decision - Decision on separate question - Proceedings dismissed - Whether leave to appeal necessary. D.
LEGISLATION CITED:	District Court Act s.127 Supreme Court Act ss.101, 103
DECISION:	See orders at end of judgment