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Fordyce v Leung

Fordyce v Leung

Case [2022] NSWCA 55 12 April 2022

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Fordyce v Leung [2022] NSWCA 55
Hearing dates: 10 February 2022
Date of orders: 12 April 2022
Decision date: 12 April 2022
Before: Basten JA at [1];
White JA at [15];
Beech-Jones JA at [111]
Decision:
(1) The application for leave to appeal from the order of 15 July 2021 in District Court proceeding 2021/00018135 be dismissed with costs.
(2) The further amended summons dated 6 December 2021 be dismissed.
(3) Subject to order (1), the costs of the further amended summons be costs in the applicant’s summons in District Court proceedings 2021/00087811.

Catchwords:
ADMINISTRATIVE LAW — Bias rule — Actual or apprehended
ADMINISTRATIVE LAW — Procedural fairness
ADMINISTRATIVE LAW — Judicial review — whether primary judge’s order was a final order
CIVIL PROCEDURE — section 127 of the District Court Act 1973 (NSW) — “action”

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 133
District Court Act 1973 (NSW), s 127
Legal Profession Act 2004 (NSW), ss 367A, 368, 372, 384, 385
Supreme Court Act 1970 (NSW), s 69
Legal Profession Uniform Law Application Regulation 2015 (NSW), reg 59
Uniform Civil Procedure Rules 2005 (NSW); 36.10, 36.15, 36.16, 50

Cases Cited:
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10
Calandra v Murden [2015] NSWCA 231
Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577, [2006] HCA 55
Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58
Doyle v Hall Chadwick [2007] NSWCA 159
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Ferella v Stomo [2017] NSWCA 268
Re Frieda and Geoffrey [2009] NSWSC 133; (2009) Fam LR 608
Frumar vThe Owners of Strata Plan 36957 [2010] NSWCA 174
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44
Leung in her capacity as Executrix of the Estate of the late Robert Ho v Fordyce [2021] NSWDC 522
Leung v Fordyce (No 2) [2019] NSWSC 175
Leung v Fordyce [2019] NSWSC 18
NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunal (2001) 53 NSWLR 559; [2001] NSWSC 494
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128
Trad v Harbour Radio Pty Ltd [2016] NSWCA 80
Voicu v The Owners-Strata Plan No 1624 [2020] NSWCA 52
Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170

Category: Principal judgment
Parties:
Proceedings 2021/300567:
Paul Fordyce (Appellant)
Claudia Leung as trustee for the estate of the Late Robert Ho (First Respondent)
Rhodium NSW Pty Ltd (Second Respondent)
District Court of New South Wales (Third Respondent)
Proceedings 2021/295887:
Paul Fordyce (Appellant)
Claudia Leung in her capacity as Executrix of the Estate of the Late Robert Ho (First Respondent)
Rhodium Pty Ltd (Second Respondent)
Representation:
Counsel:
Appellant unrepresented
Lee Corbett (Respondents)
Solicitors:
Appellant…

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 Fordyce v Leung

Details

AGLC: Fordyce v Leung [2022] NSWCA 55
Case: [2022] NSWCA 55
Decision Date: 12 April 2022

CaseChat Overview and Summary

The proceeding concerned an application for leave to appeal from an order made by a District Court judge on 15 July 2021. The applicant, Mr Fordyce, sought to appeal against that order, which had been made in proceeding 2021/00018135. The respondents were Mr Leung and others.

The primary legal issues before the Court of Appeal were whether the District Court judge’s order of 15 July 2021 was a final order for the purposes of an appeal, and whether the applicant had established grounds for judicial review based on apprehended bias and a denial of procedural fairness. Additionally, the court considered the meaning of "action" within the context of section 127 of the *District Court Act 1973* (NSW).

The Court of Appeal determined that the order of 15 July 2021 was not a final order, and therefore, leave to appeal was required. The court found no error in the primary judge’s conduct, concluding that there was no basis for a claim of apprehended bias or a breach of procedural fairness. The court also interpreted section 127 of the *District Court Act 1973* (NSW) in a manner that did not assist the applicant’s case.

Consequently, the Court of Appeal dismissed the application for leave to appeal from the 15 July 2021 order with costs. The further amended summons dated 6 December 2021 was also dismissed, with its costs to be costs in the applicant’s summons in District Court proceeding 2021/00087811.

Orders

Orders of the court

(1) The application for leave to appeal from the order of 15 July 2021 in District Court proceeding 2021/00018135 be dismissed with costs.

(2) The further amended summons dated 6 December 2021 be dismissed.

(3) Subject to order (1), the costs of the further amended summons be costs in the applicant’s summons in District Court proceedings 2021/00087811.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Fordyce v Leung [2022] NSWCA 55

Most Recent Citation

GB v EB [2022] NSWDC 322

Cases citing this decision · 4 of 4 shown

Fordyce v Leung as executor of the estate of the late Robert Ho; Fordyce v Leung as executrix of the estate of the late Robert Ho
[2023] NSWSC 778 Para 5

…ppealed from did not decide the issue on a final basis and that the review procedures in the 2004 Act are a more appropriate process: Fordyce v Leung [2022] NSWCA 55.…
GB v EB
[2022] NSWDC 322 Para 55

…Appeal, in dismissing the appeal, expressed concerns about appeals over trifling sums and grounds, views that have been repeated in Fordyce v Leung [2022] NSWCA 55 at [19]; in fact, in both Vok v DPP (NSW) [2019) NSWCA 242 and Armand-Iskak v Attorney-General of New South Wales [2019] NSWCA 145 the Court actually s…
Lawrence v Sammut (No 4)
[2022] NSWSC 1033 Para 11

…be corrected. There is also no issue about the Court’s power to do so: r 36.16 of the Uniform Civil Procedure Rules considered in Fordyce v Leung [2022] NSWCA 55 at [63].…
Benjamin & Khoury Pty Ltd v Rahme
[2022] NSWSC 766 Para 16

…t Court a suspension of the operation of the determination. Ms Rahme relied in that regard on what was said by the Court of Appeal in Fordyce v Leung [2022] NSWCA 55.…

View all 4 citing cases →

Cases cited in this decision · 25 of 25 shown

Leung in her capacity as Executrix of the Estate of the late Robert Ho v Fordyce
[2021] NSWDC 522 Para 57

…that order pending any appeal or application for leave to appeal. ( Leung in her capacity as Executrix of the Estate of the late Robert Ho v Fordyce [2021] NSWDC 522). This court was advised that no such appeal or application for leave to appeal has been filed.…
Voicu v The Owners-Strata Plan No 1624
[2020] NSWCA 52 Para 19

…ons (Legal Profession Uniform Law Application Regulation 2015 (NSW), reg 59; Ferella v Stomo [2017] NSWCA 268; Voicu v The Owners-Strata Plan No 1624 [2020] NSWCA 52). Because the repealed Act continues in force in respect of this application I will refer to its provisions using the present tense.…
CNY17 v Minister for Immigration and Border Protection
[2019] HCA 50

…he was biased. Reliance is placed upon the decision of the High Court in CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76. That case did no more than, relevantly, recite the earlier decisions of the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, Isbester v Knox City…
Claudia Leung in her capacity as Executrix of the Estate of the late Robert Ho v Paul Mervyn Fordyce t/as Pmf Legal Trading (No 2)
[2019] NSWSC 175 Para 18

…made in the Supreme Court on 1 March 2019 in proceedings commenced on 1 October 2014 ( Leung v Fordyce [2019] NSWSC 18 at [6]; Leung v Fordyce (No 2) [2019] NSWSC 175 at [44]).…
Leung v Fordyce
[2019] NSWSC 18 Para 18

…The costs order was made in the Supreme Court on 1 March 2019 in proceedings commenced on 1 October 2014 ( Leung v Fordyce [2019] NSWSC 18 at [6]; Leung v Fordyce (No 2) [2019] NSWSC 175 at [44]).…
Ferella v Stomo
[2017] NSWCA 268 Para 19

…minations and the rights of appeal from those determinations (Legal Profession Uniform Law Application Regulation 2015 (NSW), reg 59; Ferella v Stomo [2017] NSWCA 268; Voicu v The Owners-Strata Plan No 1624 [2020] NSWCA 52). Because the repealed Act continues in force in respect of this application I will refer to…
Royal Guardian Mortgage Management Pty Ltd v Nguyen
[2016] NSWCA 88 Para 84

…d v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577, [2006] HCA 55 at [2], [117]; Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128 at [9]).…
Trad v Harbour Radio Pty Ltd
[2016] NSWCA 80 Para 63

…; Frumar v The Owners of Strata Plan 36957 [2010] NSWCA 174 at [44]; Calandra v Murden [2015] NSWCA 231 at [21]; Trad v Harbour Radio Pty Ltd [2016] NSWCA 80 at [38]-[47]).…
Calandra v Murden
[2015] NSWCA 231 Para 63

…s ( Doyle v Hall Chadwick [2007] NSWCA 159 at [48]-[53]; Frumar v The Owners of Strata Plan 36957 [2010] NSWCA 174 at [44]; Calandra v Murden [2015] NSWCA 231 at [21]; Trad v Harbour Radio Pty Ltd [2016] NSWCA 80 at [38]-[47]).…
Isbester v Knox City Council
[2015] HCA 20

…earlier decisions of the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, Isbester v Knox City Council (2015) 255 CLR 135, and Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427. What is important is that in order to make out a case of actual bias, what needs to be ascertained, is a…
Wende v Horwath (NSW) Pty Ltd
[2014] NSWCA 170 Para 12

…e in the statutory appeal from the determination of the costs assessor, it would not have been an order in an action. 3. (2014) 86 NSWLR 674; [2014] NSWCA 170 at [20].…
Reid v Commercial Club (Albury) Ltd
[2014] NSWCA 98 Para 91

…tuated by actual bias is a grave allegation that should not be made lightly and requires clear and cogent proof ( Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]).…
Michael Wilson & Partners Ltd v Nicholls
[2011] HCA 48

…in Bankruptcy (2000) 205 CLR 337, Isbester v Knox City Council (2015) 255 CLR 135, and Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427. What is important is that in order to make out a case of actual bias, what needs to be ascertained, is a two stage process. First is, what is the conduct or matter relied…
Warragamba Winery Pty Ltd v State of New South Wales
[2010] NSWCA 174 Para 63

…isdiction including by correcting its records ( Doyle v Hall Chadwick [2007] NSWCA 159 at [48]-[53]; Frumar v The Owners of Strata Plan 36957 [2010] NSWCA 174 at [44]; Calandra v Murden [2015] NSWCA 231 at [21]; Trad v Harbour Radio Pty Ltd [2016] NSWCA 80 at [38]-[47]).…
Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2)
[2009] NSWCA 387

…t with the fundamental principle of the general finality of judgments: Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009)78 NSWLR 190; [2009] NSWCA 387; BC200910737at [32]– [33] and [45]. It precludes exercise of the power for slight, or merely contentious, reasons: Kendell v Carnegie (2006) 68 NSWLR 1…
Perpetual Trustees Australia Ltd v Heperu Pty Ltd
[2009] NSWCA 84

…“The jurisdiction to "set aside" the judgment entered on 21 January 2021 resides in UCPR 36.15(1), which provides as follows: A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the orde…
Re Frieda and Geoffrey
[2009] NSWSC 133 Para 94

…d to assume that certiorari may lie if error of law on the face of the record or jurisdictional error were established ( Re Frieda and Geoffrey [2009] NSWSC 133; (2009) Fam LR 608 at [34] – [35]).…
Doyle v Hall Chadwick
[2007] NSWCA 159 Para 63

…e Legal Profession Act, to enable the court properly to exercise its jurisdiction including by correcting its records ( Doyle v Hall Chadwick [2007] NSWCA 159 at [48]-[53]; Frumar v The Owners of Strata Plan 36957 [2010] NSWCA 174 at [44]; Calandra v Murden [2015] NSWCA 231 at [21]; Trad v Harbour Radio Pty Ltd [20…
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd
[2006] HCA 55 Para 84

…alidity of the judge’s decision, they should be addressed first ( Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577, [2006] HCA 55 at [2], [117]; Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128 at [9]).…
Kendell v Carnegie
[2006] NSWCA 302

…] NSWCA 387; BC200910737at [32]– [33] and [45]. It precludes exercise of the power for slight, or merely contentious, reasons: Kendell v Carnegie (2006) 68 NSWLR 193; BC200608855; [2006] NSWCA 302 at [45] per Bryson JA.”…
NSW Breeding & Racing v Administrative Decisions Tribunal
[2001] NSWSC 494 Para 100

…i will usually be refused on discretionary grounds (eg NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunal (2001) 53 NSWLR 559; [2001] NSWSC 494 at [14]-[19] and cases cited).…
Ebner v Official Trustee in Bankruptcy
[2000] HCA 63 Para 96

…yce’s affidavit had no logical connection with the issues raised on that application ( Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [8]).…
Hot Holdings Pty Ltd v Creasy
[1996] HCA 44

…NSWCA 268 Re Frieda and Geoffrey [2009] NSWSC 133; (2009) Fam LR 608 Frumar v The Owners of Strata Plan 36957 [2010] NSWCA 174 Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44 Leung in her capacity as Executrix of the Estate of the late Robert Ho v Fordyce [2021] NSWDC 522 Leung v Fordyce (No 2) [2019] NSWSC 175 Leung…
Craig v South Australia
[1995] HCA 58

…andra v Murden [2015] NSWCA 231 Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577, [2006] HCA 55 Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 Doyle v Hall Chadwick [2007] NSWCA 159 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Ferella v Stomo [2017] NSWCA 268…
Ainsworth v Criminal Justice Commission
[1992] HCA 10

…rm Law Application Regulation 2015 (NSW), reg 59 Uniform Civil Procedure Rules 2005 (NSW); 36.10, 36.15, 36.16, 50 Cases Cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 Calandra v Murden [2015] NSWCA 231 Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577, [2006] HCA 55 Craig v South…

Legislation cited in this decision · 5

Legal Profession Act 2004 (Vic)
367A, 368, 368(1), 372, 384, 385 7 mentions (from Para 3)
Civil Procedure Act 2005 (NSW)
133, 56 3 mentions (from Para 76)
Supreme Court Act 1970 (NSW)
69, 69) 3 mentions (from Para 79)
District Court Act 1973 (NSW)
127 2 mentions (from Para 12)
Uniform Civil Procedure Rules 2005 (NSW)
50(1)(c)) 2 mentions (from Para 6)

Medium Neutral Citation:	Fordyce v Leung [2022] NSWCA 55
Hearing dates:	10 February 2022
Date of orders:	12 April 2022
Decision date:	12 April 2022
Before:	Basten JA at [1]; White JA at [15]; Beech-Jones JA at [111]
Decision:	(1) The application for leave to appeal from the order of 15 July 2021 in District Court proceeding 2021/00018135 be dismissed with costs. (2) The further amended summons dated 6 December 2021 be dismissed. (3) Subject to order (1), the costs of the further amended summons be costs in the applicant’s summons in District Court proceedings 2021/00087811.
Catchwords:	ADMINISTRATIVE LAW — Bias rule — Actual or apprehended ADMINISTRATIVE LAW — Procedural fairness ADMINISTRATIVE LAW — Judicial review — whether primary judge’s order was a final order CIVIL PROCEDURE — section 127 of the District Court Act 1973 (NSW) — “action”
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56, 133 District Court Act 1973 (NSW), s 127 Legal Profession Act 2004 (NSW), ss 367A, 368, 372, 384, 385 Supreme Court Act 1970 (NSW), s 69 Legal Profession Uniform Law Application Regulation 2015 (NSW), reg 59 Uniform Civil Procedure Rules 2005 (NSW); 36.10, 36.15, 36.16, 50
Cases Cited:	Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 Calandra v Murden [2015] NSWCA 231 Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577, [2006] HCA 55 Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 Doyle v Hall Chadwick [2007] NSWCA 159 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Ferella v Stomo [2017] NSWCA 268 Re Frieda and Geoffrey [2009] NSWSC 133; (2009) Fam LR 608 Frumar vThe Owners of Strata Plan 36957 [2010] NSWCA 174 Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44 Leung in her capacity as Executrix of the Estate of the late Robert Ho v Fordyce [2021] NSWDC 522 Leung v Fordyce (No 2) [2019] NSWSC 175 Leung v Fordyce [2019] NSWSC 18 NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunal (2001) 53 NSWLR 559; [2001] NSWSC 494 Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128 Trad v Harbour Radio Pty Ltd [2016] NSWCA 80 Voicu v The Owners-Strata Plan No 1624 [2020] NSWCA 52 Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170
Category:	Principal judgment
Parties:	Proceedings 2021/300567: Paul Fordyce (Appellant) Claudia Leung as trustee for the estate of the Late Robert Ho (First Respondent) Rhodium NSW Pty Ltd (Second Respondent) District Court of New South Wales (Third Respondent) Proceedings 2021/295887: Paul Fordyce (Appellant) Claudia Leung in her capacity as Executrix of the Estate of the Late Robert Ho (First Respondent) Rhodium Pty Ltd (Second Respondent)
Representation:	Counsel: Appellant unrepresented Lee Corbett (Respondents) Solicitors: Appellant…