Kahwach v Perri, Perri v Kahwach - [2014] NSWSC 198

Supreme Court

New South Wales

Medium Neutral Citation: Kahwach v Perri, Perri v Kahwach [2014] NSWSC 198
Hearing dates: 12/02/2014
Decision date: 12 February 2014
Jurisdiction: Common Law
Before: Garling J
Decision:
In proceedings no: 2013/112049:
(1) Grant leave to the plaintiff to appeal.
(2) Allow the appeal.
(3) Set aside the order of the Local Court (Maloney LCM) of 15 March 2013, by which the plaintiff was ordered to pay the defendant's costs of the hearing.
(4) Remit the matter to the Local Court for further hearing.
(5) Order that the defendant pay the plaintiff's costs of the proceedings in this court.
In proceedings no: 2013/112871:
(6) Dismiss the summons.
(7) Order that the plaintiff pay the defendant's costs.

Catchwords: APPEAL - civil - local court decision - whether Magistrate erred in adjourning proceedings - whether erroneous interpretation of s 31.19 Uniform Civil Procedure Rules 2005 - whether costs order ought not have been made - whether Magistrate discharged obligation to give reasons
Legislation Cited: Civil Procedure Act 2005
Local Court Act 2007
Uniform Civil Procedure Rules
Cases Cited: Bilyak v Pesor [2012] NSWSC 193
Category: Principal judgment
Parties: Maroun Kahwach
Domenic Junior Perri
Representation: Counsel:
A Poljak (Perri)
D Raphael (Kahwach)
Solicitors:
Muggletons Solicitors (Perri)
Saba El-Hanania Lawyers (Kahwach)

File Number(s): 2013/00112871 2013/00112049

EX TEMPORE Judgment

Mr Perri owned a motor vehicle. Possession of it was given to his good friend Mr Kahwach for the purpose of his undertaking some repairs. Whilst it was in his possession and being driven on the roadway, it was involved in a crash and was severely damaged. The motor vehicle has been scrapped and is no longer in existence.

Mr Perri commenced proceedings against Mr Kahwach in the Local Court. So far as appears to me, the sum in question, whilst no doubt important to the two men, is of a fairly modest size. The Local Court proceedings are yet to be heard finally and both parties are before this Court seeking leave to appeal against Interlocutory Orders made by the late Maloney LCM in the Local Court on 15 March 2013.

Summonses for Leave to Appeal

Mr Perri, the plaintiff in the Local Court, seeks leave to appeal against a costs order made against him on 15 March 2013.

Mr Kahwach, the defendant in the Local Court, seeks leave to appeal an order of the Local Court permitting Mr Perri to rely upon expert evidence in the proceedings, an order vacating the hearing date, as well as the failure of the Local Court to make an order that the costs which were ordered to be paid by Mr Perri be payable forthwith.

Both of the Summonses seek relief with respect to the proceeding of 15 March 2013. That was the day upon which the proceedings were fixed for a final hearing in the Local Court. To understand the context of the submissions which occurred on that day it is necessary to note some of the history of the proceedings leading up…

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.

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Details

Case: [2014] NSWSC 198
Decision Date: 12 February 2014

CaseChat Overview and Summary

In the matter of Kahwach v Perri, Perri v Kahwach, the respondents sought to appeal a decision of the local court which had ordered the adjournment of proceedings in the matter. The appeal was brought to the Supreme Court of New South Wales, seeking to overturn the local court's decision on the basis of error in law. The dispute arose from an action for damages brought by the respondents against the applicants in relation to a motor vehicle accident. The applicants sought to adjourn the proceedings on the basis of a settlement agreement reached between the parties. The respondents argued that the adjournment was improper and that the local court had made an error in law in adjourning the proceedings.

The appeal raised two key legal issues: firstly, whether the Magistrate had erred in law in adjourning the proceedings, and secondly, whether the local court had made an erroneous interpretation of section 31.19 of the Uniform Civil Procedure Rules 2005. The respondents also argued that the Magistrate had not discharged their obligation to give reasons for the adjournment, and that a costs order made in the local court should not have been made. The applicants, on the other hand, argued that the adjournment was proper and that the local court had correctly interpreted the relevant provisions of the Uniform Civil Procedure Rules.

The Supreme Court found that the local court had not erred in law in adjourning the proceedings, and that the interpretation of section 31.19 of the Uniform Civil Procedure Rules was correct. The Court found that the Magistrate had discharged their obligation to give reasons for the adjournment, and that the costs order was appropriately made. The appeal was therefore dismissed. The Court found that the local court had correctly exercised its discretion in adjourning the proceedings, and that the decision was not one that was open to challenge on appeal. The Court further found that the Magistrate had given adequate reasons for the adjournment, and that the costs order was appropriate given the circumstances of the case.

In light of the findings of the Supreme Court, the appeal was dismissed and the respondents were ordered to pay the applicants' costs of the appeal. The Court found that the local court had correctly exercised its discretion in adjourning the proceedings and that the decision was not one that was open to challenge on appeal. The Court further found that the Magistrate had given adequate reasons for the adjournment, and that the costs order was appropriate given the circumstances of the case.

Orders