Fordyce v Leung

Case [2022] NSWCA 55


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…

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Details
AGLC
Fordyce v Leung [2022] NSWCA 55
Case
[2022] NSWCA 55
Decision Date

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

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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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