Fink v Beaven - [2010] NSWCA 92

New South Wales

Court of Appeal

CITATION: Fink v Beaven [2010] NSWCA 92

JUDGMENT OF: Macfarlan JA at 1; Handley AJA at 13

EX TEMPORE JUDGMENT DATE: 27 April 2010

DECISION: Orders:
(1) That the application for extension of time be granted with costs of that application being payable by the applicants.
(2) That the application for leave to appeal be dismissed with costs.

CATCHWORDS: PROCEDURE - leave to appeal to Court of Appeal - small amount of money involved, no issue of principle or general public importance and no obvious injustice - leave refused

CATEGORY: Procedural and other rulings

CASES CITED: Banque Commerciale SA (In Liq) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279
Carolan v AMF Bowling Pty Limited trading as Bennetts Green Bowl [1995] NSWCA 69
Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658
Johnston v McGrath [2007] NSWCA 231

PARTIES: Andre Fink (First Applicant)
William Bertram Rietveld (Second Applicant)
Robin Newton Beaven (First Respondent)
Mildred Josephine Beaven (Second Respondent)
Alexander Edward Beaven (Third Respondent)

FILE NUMBER(S): CA 2009/00298560

COUNSEL: J Keesing (Applicants)
T F Robertson SC/J Lazarus (Respondents)

SOLICITORS: Makinson & d'Apice Lawyers (Applicants)
Hunt & Hunt (Respondents)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 406/2007

LOWER COURT JUDICIAL OFFICER: Sidis DCJ

LOWER COURT DATE OF DECISION: 19 August 2009

CA 2009/00298560

MACFARLAN JA
HANDLEY AJA
TUESDAY 27 APRIL 2010

FINK v BEAVEN

Judgment

1 MACFARLAN JA: This is an application for leave to appeal from two judgments of Judge Sidis. The first judgment was delivered on 19 August 2009 and the second, which related to costs, was delivered on 25 August 2009.

2 The application for leave to appeal was filed out of time but only by a short period. An application for extension of time was filed. That has now been consented to and accordingly it is appropriate that an extension of time be granted. Nevertheless, it is also appropriate that the applicant pay the costs of that application for extension of time.

3 The proceedings below arose out of a dispute between owners of neighbouring holiday homes on Wallis Island, New South Wales. The present respondents, members of the Beaven family, commenced proceedings against two members of the Fink family and a contractor of it. The respondents claimed damages in respect of alleged trespasses by the applicants upon the property owned by two of the respondents, the conversion of property owned by the respondents and slander by one of the applicants of the respondents.

4 The primary judge dealt carefully with the issues presented to her, found most of the allegations proved and awarded to the respondents damages of $1,571 for conversion, $20,000 for trespass and $2,500 for slander.

5 Subject to consideration of two matters to which I will refer later, the issues sought to be raised by the applicants on appeal are unexceptional issues of fact, or mixed fact and law, of a detailed nature. Having considered the applicant’s submissions,…

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: [2010] NSWCA 92
Decision Date: 27 April 2010

CaseChat Overview and Summary

The applicants, Fink and others, sought leave to appeal to the Court of Appeal against a decision of the primary judge. The respondent was Beaven. The dispute concerned a relatively small sum of money.

The central legal issue before the Court of Appeal was whether to grant leave to appeal. This required the Court to consider whether there was a sufficient reason to depart from the general rule that leave to appeal is not granted in cases involving small monetary amounts, where no issue of principle or general public importance arises, and where no obvious injustice has occurred.

The Court of Appeal determined that the criteria for granting leave to appeal were not met. The applicants had not demonstrated any compelling reason, such as an issue of principle or general public importance, or an obvious injustice, to justify an appeal in a matter involving a small financial sum. Consequently, the Court refused leave to appeal.

The Court ordered that the application for an extension of time be granted, with costs payable by the applicants. However, the application for leave to appeal itself was dismissed, with costs awarded to the respondent.

Orders

Orders of the court

Orders:

(1) That the application for extension of time be granted with costs of that application being payable by the applicants.

(2) That the application for leave to appeal be dismissed with costs.

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:	Fink v Beaven [2010] NSWCA 92
JUDGMENT OF:	Macfarlan JA at 1; Handley AJA at 13
EX TEMPORE JUDGMENT DATE:	27 April 2010
DECISION:	Orders: (1) That the application for extension of time be granted with costs of that application being payable by the applicants. (2) That the application for leave to appeal be dismissed with costs.
CATCHWORDS:	PROCEDURE - leave to appeal to Court of Appeal - small amount of money involved, no issue of principle or general public importance and no obvious injustice - leave refused
CATEGORY:	Procedural and other rulings
CASES CITED:	Banque Commerciale SA (In Liq) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 Carolan v AMF Bowling Pty Limited trading as Bennetts Green Bowl [1995] NSWCA 69 Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 Johnston v McGrath [2007] NSWCA 231
PARTIES:	Andre Fink (First Applicant) William Bertram Rietveld (Second Applicant) Robin Newton Beaven (First Respondent) Mildred Josephine Beaven (Second Respondent) Alexander Edward Beaven (Third Respondent)
FILE NUMBER(S):	CA 2009/00298560
COUNSEL:	J Keesing (Applicants) T F Robertson SC/J Lazarus (Respondents)
SOLICITORS:	Makinson & d'Apice Lawyers (Applicants) Hunt & Hunt (Respondents)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 406/2007
LOWER COURT JUDICIAL OFFICER:	Sidis DCJ
LOWER COURT DATE OF DECISION:	19 August 2009