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Gabriel v Grech

Gabriel v Grech

Case [2018] NSWSC 1652 1 November 2018

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Supreme Court

New South Wales

Medium Neutral Citation: Gabriel v Grech [2018] NSWSC 1652
Hearing dates: 20 March 2018
Date of orders: 01 November 2018
Decision date: 01 November 2018
Jurisdiction: Common Law
Before: Walton J
Decision:
(1) The amended motion is dismissed.
(2) Costs are reserved.
Catchwords: CIVIL PROCEDURE – dismissal application of appeal proceedings – objections to competency of appeal pursuant to r 50.16A of the Uniform Civil Procedure Rules 2005 (NSW) – whether the appeal is incompetent – whether the notice of motion should be heard and determined in advance of the hearing of the amended summons – the plaintiff’s extant application for extension of time pursuant to r 50.3(1)(c) – whether, if the appeal was out of time, it may be declared incompetent if there remains outstanding an application to extend time –whether the appeal was filed out of time – time for appeal pursuant to r 50.3 of the UCPR – construction of rr 50.2 and 50.3 of the UCPR – relevant principles – r 50.2(1) definition of “material date” and “decision” – material date is defined as “the date on which the decision is pronounced or given” – whether reasonable argument appeal filed in time – motion dismissed – costs reserved
Legislation Cited: Electronic Transactions Act 2000 (NSW)
Local Court Act 2007 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Altus Group (UK) Limited v Baker Tilly [2015] EWHC 12 (Ch)
Asuzu v Council of the New South Wales Bar Association [2012] NSWCA 406
Blackmore v Browne; Kara Kar Holdings Pty Ltd v Blackmore [2011] NSWCA 114
Gabriel v Grech (Unreported, New South Wales Local Court (Downing Centre), 10 March 2017)
Gabriel v Grech (Unreported, New South Wales Local Court (Downing Centre), 11 August 2017)
Mills v Futhem [2011] NSWCA 252
Palermo Seafood Pty Ltd v Lunapas [2015] NSWCA 175
Russo v Acebound Pty Ltd [2012] NSWSC 300
Woollahra Municipal Council v Sved (Unreported, New South Wales Court of Appeal, 24 July 1998)
Texts Cited: NSW Supreme Court Practice Note 1 SC CA 1 (27 March 2009)
NSW Supreme Court Practice Note 1 SC CA 1 (12 December 2017)
Category: Procedural and other rulings
Parties: Joseph Gabriel (Plaintiff / First Respondent)
Paul Grech (First Defendant / Second Respondent)
Drive My Car Rentals Pty Ltd (Second Defendant / Applicant on Motion)
Representation:
Counsel:
S A Baron Levi (Plaintiff / First Respondent)
M R Rollinson (First Defendant / Second Respondent)
P M Barham (Second Defendant / Applicant on Motion)
Solicitors:
William Roberts Lawyers (Plaintiff / First Respondent)
Nazarian Lawyers (First Defendant / Second Respondent)
Fraser Clancy Lawyers (Second Defendant / Applicant on Motion)

File Number(s): 2017/273635
Decision under appeal

Court or tribunal:

Local Court of New South Wales (Downing Centre)

Jurisdiction:

Civil

Date of Decision:

11 August 2017

Before:

Atkinson LCM

File Number(s):

2014/63231

JUDGMENT

HIS HONOUR: By a statement of claim filed 28 February 2014 (“the claim”), Joseph Gabriel (“the plaintiff”) brought an action for damages for negligence…

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 Gabriel v Grech

Details

AGLC: Gabriel v Grech [2018] NSWSC 1652
Case: [2018] NSWSC 1652
Decision Date: 01 November 2018

CaseChat Overview and Summary

In the matter of Gabriel v Grech, the dispute arose from an appeal lodged by the plaintiff, Gabriel, against the decision of the court below. The case was heard in the Supreme Court of New South Wales. The defendant, Grech, filed a dismissal application on the grounds that the appeal was incompetent due to the failure of the plaintiff to file the appeal within the requisite time frame, as prescribed by rule 50.3 of the Uniform Civil Procedure Rules 2005 (NSW). Additionally, Grech objected to the competency of the appeal on the basis that the notice of motion should have been heard and determined prior to the hearing of the amended summons. Furthermore, Grech argued that the plaintiff's application for an extension of time, pursuant to rule 50.3(1)(c) of the UCPR, did not preclude the declaration of the appeal as incompetent if it was filed out of time.

The primary legal issues before the court were whether the appeal was indeed incompetent, whether the notice of motion should have been addressed before the hearing of the amended summons, and whether the appeal was filed out of time. The court had to determine the interpretation of rules 50.2 and 50.3 of the UCPR, particularly the definition of "material date" and "decision" as outlined in rule 50.2(1). The court also had to consider the relevant principles that apply to the construction of these rules and assess whether there was a reasonable argument that the appeal was filed in a timely manner. The court found that there was no reasonable argument that the appeal was filed in time, and dismissed the motion. The costs were reserved for further determination.

The Supreme Court of New South Wales dismissed the defendant's dismissal application, finding that the appeal was incompetent due to the late filing. The court ruled that the notice of motion should have been heard and determined prior to the hearing of the amended summons. Furthermore, the court held that even though there was an outstanding application for an extension of time, this did not preclude the declaration of the appeal as incompetent if it was filed out of time. The court also clarified the construction of rules 50.2 and 50.3 of the UCPR, particularly the definition of "material date" and "decision" and the relevant principles that apply to their interpretation. The final orders of the court were that the motion was dismissed, and the costs were reserved for further determination.

Orders