El-Hanania v Vella (No 2) - [2019] NSWCA 212

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: El-Hanania v Vella (No 2) [2019] NSWCA 212
Hearing dates: 19 August 2019
Date of orders: 19 August 2019
Decision date: 19 August 2019
Before: Brereton JA
Decision:
(1) Order that the proceedings be dismissed.
(2) Order that the applicant pay the respondent’s costs.
(3) Direct that within 72 hours the respondent serve a sealed copy of these orders on the applicant and file an affidavit of service proving compliance with this direction.
(4) Reserve leave to the applicant to set aside this order within seven (7) days after service of the said copy order.
(5) Direct that orders (1) and (2) not take effect until the later of
(a) 30 August 2019; or
(b) if the applicant applies pursuant to the leave in order (4), determination of that application.

Catchwords: CIVIL PROCEDURE – dismissal of proceedings – where order granting extension of time to appeal conditional – where conditions not met – where applicant fails to show cause to proceed
Category: Consequential orders (other than Costs)
Parties: Saba El-Hanania (Applicant)
Alon Joseph Vella (First Respondent)
District Court of NSW (Second Respondent)
Robert Webley (Third Respondent)
Michael Robinson (Fourth Respondent)
Representation:
Counsel:
Mr P Tierney (First Respondent)
Solicitors:
Saba El-Hanania Lawyers (Applicant)
Rickards Whiteley (First Respondent)

File Number(s): 2019/101284

Judgment (ex tempore)

On 10 July 2019, the Court (constituted by Gleeson, Payne, and McCallum JJA) delivered reasons[1] for orders which had been made on 3 July 2019 in the following form:
1. El-Hanania v Vella [2019] NSWCA 167.

1. Subject to the conditions in paragraph 2 below, extend the time for filing of the Summons to 1 April 2019.
2. Within 28 days of today the applicant is to:
(a) pay into the Court the sum of $212,765.37 to abide the further order of the Court;
(b) provide security for costs in a form satisfactory to the Registrar of the Court in the amount of $35,000;

3. Otherwise dismiss the respondent’s amended notice of motion filed 15 April 2019.
4. Reasons are reserved.
5. Proceedings are stood over to Monday, 5 August 2019 for directions before the Registrar.

The applicant was represented by counsel on 3 July 2019 when those orders were made.
It will be observed that the orders of 3 July 2019 granted an extension of time for filing the summons instituting these proceedings to 1 April 2019, subject to conditions requiring payment into Court of some $212,000 and provision of security for costs in a form satisfactory to the Registrar in the sum of $35,000.
The record discloses no compliance with either of those conditions. It is clear from the reasons of McCallum JA at [48] and [49] that the extension of time which permitted the proceedings validly to be instituted was intended to be conditional upon compliance with the conditions.
When the orders of 3 July were made, the proceedings were adjourned to 5 August 2019 before the Registrar. The Registrar’s notes of the…

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 212
Decision Date: 19 August 2019

CaseChat Overview and Summary

The proceedings involved an application by El-Hanania (the applicant) seeking to extend the time to appeal against a prior decision. Vella (the respondent) opposed this application. The matter came before Brereton JA in the Court of Appeal of New South Wales.

The primary legal issue before the court was whether the applicant had satisfied the conditions attached to a previous order that had granted an extension of time to appeal, subject to those conditions being met. The applicant was required to show cause why the proceedings should not be dismissed due to non-compliance with these conditions.

Brereton JA reasoned that the applicant had failed to demonstrate compliance with the conditions precedent to the grant of the extension of time. Consequently, the court found that the applicant had not shown sufficient cause to justify proceeding with the appeal. The court applied the principles governing conditional orders and the requirement for parties to adhere to court directions.

The court ordered that the proceedings be dismissed and that the applicant pay the respondent's costs. The respondent was directed to serve a sealed copy of the orders on the applicant within 72 hours and file an affidavit of service. Leave was reserved to the applicant to set aside this order within seven days of service, with the dismissal and costs orders not taking effect until 30 August 2019 or the determination of any application made under that leave.

Orders

Orders of the court

(1) Order that the proceedings be dismissed.

(2) Order that the applicant pay the respondent’s costs.

(3) Direct that within 72 hours the respondent serve a sealed copy of these orders on the applicant and file an affidavit of service proving compliance with this direction.

(4) Reserve leave to the applicant to set aside this order within seven (7) days after service of the said copy order.

(5) Direct that orders (1) and (2) not take effect until the later of

(a) 30 August 2019; or

(b) if the applicant applies pursuant to the leave in order (4), determination of that application.

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:	El-Hanania v Vella (No 2) [2019] NSWCA 212
Hearing dates:	19 August 2019
Date of orders:	19 August 2019
Decision date:	19 August 2019
Before:	Brereton JA
Decision:	(1) Order that the proceedings be dismissed. (2) Order that the applicant pay the respondent’s costs. (3) Direct that within 72 hours the respondent serve a sealed copy of these orders on the applicant and file an affidavit of service proving compliance with this direction. (4) Reserve leave to the applicant to set aside this order within seven (7) days after service of the said copy order. (5) Direct that orders (1) and (2) not take effect until the later of (a) 30 August 2019; or (b) if the applicant applies pursuant to the leave in order (4), determination of that application.
Catchwords:	CIVIL PROCEDURE – dismissal of proceedings – where order granting extension of time to appeal conditional – where conditions not met – where applicant fails to show cause to proceed
Category:	Consequential orders (other than Costs)
Parties:	Saba El-Hanania (Applicant) Alon Joseph Vella (First Respondent) District Court of NSW (Second Respondent) Robert Webley (Third Respondent) Michael Robinson (Fourth Respondent)
Representation:	Counsel: Mr P Tierney (First Respondent) Solicitors: Saba El-Hanania Lawyers (Applicant) Rickards Whiteley (First Respondent)
File Number(s):	2019/101284