Duraisamy v Sydney Trains

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Duraisamy v Sydney Trains [2019] NSWCA 269

Hearing dates:

29 October 2019

Date of orders:

06 November 2019

Decision date:

06 November 2019

Before:

Bell P at [1], Macfarlan JA at [28], Payne JA at [29]

Decision:

1.   In matter 2019/170767:

 

(a)   refuse an extension of time to file the summons seeking leave to appeal and dismiss the notice of motion filed 3 July 2019;
(b)   dismiss the summons;
(c)   order that the applicant pay the respondent’s costs of the application to extend time and the summons seeking leave to appeal including any costs of the notice of motion.

 

2.   In matter 2019/290445:

 (a)   refuse an extension of time to file the summons seeking judicial review;
(b)   dismiss the summons;
(c)   order that the applicant pay the respondent’s costs of the application to extend time and the summons seeking leave to   appeal.

Catchwords:

CIVIL PROCEDURE – application for extension of time to file summons seeking leave to appeal and summons seeking judicial review – application refused – no issue of principle

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 14.28

Cases Cited:

Gee v Office of the Director of Public Prosecutions [2019] NSWCA 257
Nobarani v Mariconte [2018] HCA 36; (2018) 92 ALJR 806
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep)

Category:

Principal judgment

Parties:

Ashok Kumar Duraisamy (Applicant)
Sydney Trains (Respondent)

Representation:

Counsel:
Self-represented (Applicant)
E Raper SC (Respondent)

  Solicitors:
Bartier Perry Lawyers (Respondent)

File Number(s):

2019/170767 and 2019/290445

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales, District Court of New South Wales

Jurisdiction:

Common Law, General

Citation:

[2019] NSWSC 199

Date of Decision:

05 March 2019

Before:

Ierace J, Robison DCJ

File Number(s):

2018/296875, 2017/347036

Headnote

[This headnote is not to be read as part of the judgment]

Mr Ashok Kumar Duraisamy (the applicant) was employed by Sydney Trains (the respondent) from 2003 to 2017. In June 2017, the applicant signed a Deed of Release (the Deed) and, at around the same time, provided a letter of resignation to the respondent. The Deed contained a clause which acknowledged that all “Entitlements”, defined to include “any claim for wages”, had “either been taken by Mr Duraisamy during the Employment or paid to Mr Duraisamy by Sydney Trains”. Additionally, the Deed contained a release by which the applicant “release[d] and forever discharge[d] the Released Parties… from all Claims which Mr Duraisamy now has or could, would or might but for this release have or have had against the Released Parties…”

The amount of $35,000 payable under the Deed was not paid on the due date by the respondent but some 5 days later. The applicant has retained it. Notwithstanding this, the day after the settlement payment was made, the applicant purported to revoke the Deed. He then brought…