Gabrielle v Abood (No 3)

[2023] NSWCA 29

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Gabrielle v Abood (No 3) [2023] NSWCA 29

Hearing dates:

21 February 2023

Date of orders:

23 February 2023

Decision date:

23 February 2023

Before:

Bell CJ at [1]
Kirk JA at [2]
Adamson JA at [24]

Decision:

(1) Leave to appeal is refused.

(2) The applicant is to pay the costs of the first to third respondents.

Catchwords:

APPEALS — Leave to appeal — Re decision to refuse application for an adjournment and consequent dismissal of cross-summons — Matter of practice and procedure — Decision reached not unreasonable or plainly unjust — No material consideration ignored — House v The King error not made out — Leave to appeal refused

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56(1)

Conveyancing Act 1919 (NSW), s 66G

Cases Cited:

Gabrielle v Abood [2022] NSWCA 250

Gabrielle v Abood (No 2) [2023] NSWCA 28

PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48

T & H Pty Ltd v Nguyen [2022] NSWCA 180

Category:

Principal judgment

Parties:

Chakib Carlo Gabrielle (Applicant)
Rima Abood (First Respondent)
Sean Magnus Wengel (Second Respondent)
Michael Craig Brereton (Third Respondent)

Representation:

Advocates:
N Kulkarni (First Respondent)
D Radman (Second and Third Respondents)

Solicitors:
Lane & O'Rourke Solicitors (First Respondent)
Grace Lawyers (Second and Third Respondents)

File Number(s):

2022/228004

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Equity

Citation:

[2022] NSWSC 912

Date of Decision:

8 July 2022

Before:

Hammerschlag CJ in Eq

File Number(s):

2021/233613

Judgment

1. BELL CJ: I agree with Kirk JA.

2. KIRK JA: The applicant and first respondent are brother and sister. In March 2002 they purchased a house in Condell Park in Sydney as tenants in common. They subsequently fell out. The first respondent applied to the Supreme Court for orders under s 66G of the Conveyancing Act 1919 (NSW) for the appointment of trustees for sale of the property. The applicant filed a cross-summons by which he sought to allege that the first respondent’s interest in the property was held on trust for him and she had no beneficial interest of her own. There was a second defendant below, being the applicant’s former trustee in bankruptcy, who had placed a caveat over the property in connection with unpaid costs and fees.

3. The matter was heard in the Supreme Court on Friday 1 July 2022, followed by Monday 4 and Tuesday 5 July 2022, in circumstances described below. Near the commencement of the hearing the applicant, who was then self-represented, sought a long adjournment, saying that for him to be prepared it was “going to take a few months, yes, but not weeks”. This application was refused, although the primary judge did grant a short adjournment till 2pm on the Monday in order to enable the applicant time to prepare to cross-examine his sister. That cross-examination took place on the Monday, over nearly 28 pages of transcript. The primary judge delivered judgment on 8 July 2022, dismissing the…