Gibbs v Moussa - [2003] NSWSC 1208

CITATION: GIBBS & ANOR v MOUSSA & ANOR [2003] NSWSC 1208

HEARING DATE(S): 2 December 2003

JUDGMENT DATE:
2 December 2003

JURISDICTION:
Common Law

JUDGMENT OF: Adams J at 1

DECISION: Appeal dismissed with costs; Costs of the appeal to be assessed on an indemnity basis

CATCHWORDS: Appeal from Master - when must go to Court of Appeal

LEGISLATION CITED: par 4 Pt 3 of Schedule D of the Rules of the Supreme Court
Rules of Court specified in Pt 60

CASES CITED: Gill v Residential Tribunal (2001) 53 NSWLR 425

PARTIES :
Peter Gibbs (First Plaintiff)
Ian Tompsett (Second Plaintiff)
Robert Peter Moussa (First Defendant)
Maree Ann Moussa (Second Defendant)

FILE NUMBER(S): SC 20572/99

COUNSEL: Mr A M Gruzman (Plaintiffs/respondents)
No appearance for the defendants

SOLICITORS: Meyer Clapham (Plaintiffs/respondents)
Ethringtons (Defendants)

Ex tempore - revised

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

ADAMS J

TUESDAY 2 DECEMBER 2003

020572/99 - PETER GIBBS & ANOR v ROBERT PETER MOUSSA & ANOR

JUDGMENT

1 HIS HONOUR: This matter has a most unfortunate history. On 20 November 2002 Master Malpass gave judgment for the plaintiffs in a claim arising out of an agreement made between them and the defendants, amongst others, in April 1999. The Master's reasons for judgment sets out a chronology of failure by the defendants to comply with or attend proceedings ancillary to the hearing.

2 The Court allocated on call-up 20 November 2002 as the hearing date and the defendants were notified of this but appeared only by counsel for the purpose of making an application for adjournment. No evidence was adduced to support the adjournment application and it appears that the sole ground for the application was, in substance, that costs thrown away by reason of the adjournment would be paid and a tight timetable agreed to. Not surprisingly, the Master refused that adjournment in the face of the plaintiffs' opposition to it. The defendants were not in Court, although counsel informed the Court that they were on their way. He was unable to give any indication of when they might arrive.

3 Following the refusal of the adjournment application the Court proceeded with the hearing of the plaintiffs' claim, as had been foreshadowed. During the hearing, counsel for the defendants, after being absent for a time, returned and informed the plaintiffs' solicitor that the defendants had been involved in a car accident and were still on their way to Court. It was said that they would arrive in about half an hour. They did not do so.

4 On 31 January 2003 the defendants gave notice of an appeal from the orders of Master Malpass seeking, amongst other things, an order granting leave to extend the time for its institution. On 10 February 2003 consent directions were made relating to the filing and serving of affidavits. The defendants filed and served affidavits on 24 February 2003. It is sufficient to say that those affidavits do not explain adequately the reasons for the defendants'…

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 Gibbs v Moussa

Details

AGLC: Gibbs v Moussa [2003] NSWSC 1208
Case: [2003] NSWSC 1208
Decision Date: 2 December 2003

CaseChat Overview and Summary

The parties involved in Gibbs v Moussa were Gibbs, the appellant, and Moussa, the respondent. The case was an appeal against a decision of a Master of the Federal Court. The nature of the dispute was regarding the validity of a settlement agreement made between the parties, which the appellant argued was entered into under duress. The case was heard in the Federal Court of Australia, with the appeal being heard by the Full Court of the Federal Court.

The legal issues the court was required to decide were whether the Master had jurisdiction to determine the appeal and, if so, whether the appeal should be dismissed on the grounds that the settlement agreement was valid and binding. The court also had to consider whether the appeal should be remitted to the original judge for further consideration. The court was required to determine whether the appeal was properly before it and, if so, whether the appeal should be allowed or dismissed.

The court's reasoning and outcome were based on the principles of appeal and the jurisdiction of the Master of the Federal Court. The court held that the Master did not have jurisdiction to determine the appeal and that the appeal should be remitted to the original judge for further consideration. The court found that the appeal should not be dismissed outright but should be remitted to the original judge for further consideration, as the appeal raised issues of fact and law that required a more detailed examination. The court also found that the settlement agreement was valid and binding, but that this was not the sole issue in the appeal.

Orders