Girgis v Oueik - [2018] NSWCA 314

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Girgis v Oueik [2018] NSWCA 314
Hearing dates: On the papers
Decision date: 14 December 2018
Before: McColl JA; Simpson AJA
Decision:
Application for leave to appeal dismissed with costs

Catchwords:
CIVIL PROCEDURE – application for leave to appeal – where dispute about terms of agreement for installation and provision of security cameras – where primary judge disbelieved applicant – where primary judge made findings of fraud and lying under oath against applicant – where applicant made complaint to Judicial Commission while primary judgment reserved about manner in which primary judge conducted hearing – where applicant did not suggest in complaint or otherwise that primary judge should recuse himself – where no reference to complaint in primary judgment – whether arguable basis for apprehended bias demonstrated by primary judge’s failure to refer to complaint – whether incontrovertible facts or uncontested testimony identified demonstrated on arguable basis that primary judge’s rejection of applicant’s evidence erroneous – Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
CIVIL PROCEDURE – application for leave to appeal – agreement for installation and provision of security cameras – whether primary judge erred in reliance on expert evidence in calculation of quantum meruit – where quantum meruit calculations would, if successful, make a difference of $6044.56 to judgment amount – where costs likely to swamp small money sum involved in dispute – necessity of finality in litigation
Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW)
District Court Act 1973 (NSW)
Evidence Act 1995 (NSW)
Interpretation Act 1987 (NSW)
Cases Cited: Carolan v AMF Bowling Pty Ltd t/a Bennetts Green Bowl [1995] NSWCA 69
Collier v Lancer (No 2) [2013] NSWCA 186
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Kumargamage v Rallis (No 2) [2001] NSWSC 710
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Zelden v Sewell Henamaste Pty Ltd [2011] NSWCA 56
Category: Principal judgment
Parties: Michael Girgis (Applicant)
Ronney Oueik (First Respondent)
BBC Developments Pty Ltd (Second respondent)
Representation: Counsel:
L J Byrne (Applicant)
C D Wood (Respondent)
Solicitors:
Abrahams & Associates Lawyers (Applicant)
Paramonte Legal (Respondents)

File Number(s): 2018/222514
Publication restriction: No
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Civil

Citation:

N/A

Date of Decision:

22 June 2018

Before:

Wilson SC DCJ

File Number(s):

2016/140487

Judgment

THE COURT: By summons filed on 24 September 2018, Mr Michael Girgis seeks leave to appeal against Wilson SC DCJ’s orders of 22 June 2018 entering judgment for the first respondent, Mr Ronney Oueik, in the sum of $81,042.35 including interest. [1] Leave to appeal is required because the judgment does not involve a matter at issue amounting to or of the value of $100,000. [2]
1. Oueik v Girgis (District Court (NSW), unrep,…

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 Girgis v Oueik

Details

AGLC: Girgis v Oueik [2018] NSWCA 314
Case: [2018] NSWCA 314
Decision Date: 14 December 2018

CaseChat Overview and Summary

The dispute in *Girgis v Oueik* concerned the terms of an agreement for the installation and provision of security cameras. The primary judge had disbelieved the applicant, making findings of fraud and lying under oath against him. While the primary judgment was being reserved, the applicant made a complaint to the Judicial Commission regarding the manner in which the primary judge conducted the hearing. However, the applicant did not suggest in this complaint or otherwise that the primary judge should recuse himself, and the complaint was not referenced in the primary judgment.

The Court of Appeal was required to determine two main legal issues. Firstly, whether the primary judge’s failure to refer to the applicant’s complaint to the Judicial Commission demonstrated an arguable basis for apprehended bias. Secondly, whether incontrovertible facts or uncontested testimony demonstrated, on an arguable basis, that the primary judge’s rejection of the applicant’s evidence was erroneous. A further issue concerned whether the primary judge erred in relying on expert evidence in the calculation of quantum meruit, noting that this calculation would only result in a difference of $6044.56 to the judgment amount, a sum likely to be outweighed by costs.

The Court of Appeal dismissed the application for leave to appeal. The Court found that the applicant had not demonstrated an arguable basis for apprehended bias, as the complaint to the Judicial Commission was made after the hearing concluded and without any request for recusal. Furthermore, the Court was not satisfied that there was an arguable basis to challenge the primary judge's rejection of the applicant's evidence, nor that the reliance on expert evidence for the quantum meruit calculation was erroneous. The Court also considered the principle of finality in litigation, particularly in light of the relatively small sum involved in the quantum meruit dispute.

Consequently, the application for leave to appeal was dismissed with costs.

Orders

Orders of the court

Application for leave to appeal dismissed with costs

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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Medium Neutral Citation:	Girgis v Oueik [2018] NSWCA 314
Hearing dates:	On the papers
Decision date:	14 December 2018
Before:	McColl JA; Simpson AJA
Decision:	Application for leave to appeal dismissed with costs
Catchwords:	CIVIL PROCEDURE – application for leave to appeal – where dispute about terms of agreement for installation and provision of security cameras – where primary judge disbelieved applicant – where primary judge made findings of fraud and lying under oath against applicant – where applicant made complaint to Judicial Commission while primary judgment reserved about manner in which primary judge conducted hearing – where applicant did not suggest in complaint or otherwise that primary judge should recuse himself – where no reference to complaint in primary judgment – whether arguable basis for apprehended bias demonstrated by primary judge’s failure to refer to complaint – whether incontrovertible facts or uncontested testimony identified demonstrated on arguable basis that primary judge’s rejection of applicant’s evidence erroneous – Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 CIVIL PROCEDURE – application for leave to appeal – agreement for installation and provision of security cameras – whether primary judge erred in reliance on expert evidence in calculation of quantum meruit – where quantum meruit calculations would, if successful, make a difference of $6044.56 to judgment amount – where costs likely to swamp small money sum involved in dispute – necessity of finality in litigation
Legislation Cited:	Building and Construction Industry Security of Payment Act 1999 (NSW) District Court Act 1973 (NSW) Evidence Act 1995 (NSW) Interpretation Act 1987 (NSW)
Cases Cited:	Carolan v AMF Bowling Pty Ltd t/a Bennetts Green Bowl [1995] NSWCA 69 Collier v Lancer (No 2) [2013] NSWCA 186 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Kumargamage v Rallis (No 2) [2001] NSWSC 710 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44 Zelden v Sewell Henamaste Pty Ltd [2011] NSWCA 56
Category:	Principal judgment
Parties:	Michael Girgis (Applicant) Ronney Oueik (First Respondent) BBC Developments Pty Ltd (Second respondent)
Representation:	Counsel: L J Byrne (Applicant) C D Wood (Respondent) Solicitors: Abrahams & Associates Lawyers (Applicant) Paramonte Legal (Respondents)
File Number(s):	2018/222514
Publication restriction:	No
Decision under appeal	Court or tribunal: District Court Jurisdiction: Civil Citation: N/A Date of Decision: 22 June 2018 Before: Wilson SC DCJ File Number(s): 2016/140487