Kearney v Amirbeaggi (No 2) - [2025] NSWCA 73

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kearney v Amirbeaggi (No 2) [2025] NSWCA 73
Hearing dates: 14 April 2025
Date of orders: 14 April 2025
Decision date: 14 April 2025
Before: Kirk JA
Decision:
(1) The applicant’s application for an adjournment of the hearing of his notice of motion filed on 1 April 2025 is refused.
(2) With respect to the applicant’s notice of motion filed on 1 April 2025:
(a) dismiss prayers 1 and 2;
(b) stand prayer 3 over to be heard together with the application for leave to appeal.
(3) The applicant is to pay the respondents’ costs of the motion incurred to date.

Catchwords:
CIVIL PROCEDURE – hearings – application to expedite application for leave to appeal where final hearing below soon to commence – prolonged proceeding below with final hearing dates twice postponed on applicant’s application based on mental health arguments – applicant not yet filed materials on application for leave to appeal despite orders – application refused to avoid heavy burden on parties and interference in preparation for final hearing
CIVIL PROCEDURE – Court of Appeal – whether should be concurrent hearing of leave application and appeal is administrative decision generally made by President of Court of Appeal – not open to applicant to seek that the decision be made by a judge of appeal determining a motion
CIVIL PROCEDURE – hearings – adjournment – adjournment sought when very short period remains before commencement of final hearing

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56-58
Uniform Civil Procedure Rules 2005 (NSW), r 51.14

Cases Cited:
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22
Kearney v Amirbeaggi [2022] NSWSC 130
Kearney v Amirbeaggi [2022] NSWSC 805
Kearney v Amirbeaggi [2022] NSWCA 130
Mohareb v Manly Local Court (2024) 115 NSWLR 229; [2024] NSWCA 233

Category: Procedural rulings
Parties: Brian Kearney (Applicant; self-represented)
Farshad Amirbeaggi (First respondent)
ACN 111 804 383 Pty Ltd t/as Yates Beaggi Lawyers (Second respondent)
Representation:
Counsel:
B Smith (Respondents)
Solicitors:
YPOL Lawyers (Respondents)

File Number(s): 2025/64945
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

Kearney v Amirbeaggi [2025] NSWSC 147; Kearney v Amirbeaggi [2025] NSWSC 196; Kearney v Amirbeaggi [2025] NSWSC 260

Date of Decision:

17 February 2025; 19 February 2025; 7 March 2025; 21 March 2025

Before:

Fagan J

File Number(s):

2019/96321

JUDGMENT

The applicant, Brian Kearney, has filed a summons seeking leave to appeal from various interlocutory rulings made by Fagan J in the Common Law Division of the Supreme Court. The Supreme Court proceedings have been on foot for six years. They are listed for hearing in two weeks time commencing on 28 April 2025.
This morning I heard and determined a motion filed by Mr Kearney on 1 April 2025 seeking the following:

an order for expedition of the hearing of his application for leave to appeal and his appeal;

an order that “leave to…

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 Kearney v Amirbeaggi (No 2)

Details

AGLC: Kearney v Amirbeaggi (No 2) [2025] NSWCA 73
Case: [2025] NSWCA 73
Decision Date: 14 April 2025

CaseChat Overview and Summary

In *Kearney v Amirbeaggi (No 2)*, the applicant sought an adjournment of a hearing concerning his application for leave to appeal. The dispute arose in the context of a prolonged proceeding below, where the final hearing had already been postponed twice at the applicant's request due to mental health arguments. The applicant had also failed to file materials for his application for leave to appeal despite court orders. The matter came before Kirk JA in the Court of Appeal.

The primary legal issues before the court were whether to grant the applicant's request for an adjournment of his notice of motion, and how to deal with the substantive prayers within that motion, particularly in light of the impending final hearing in the court below. The court also considered the procedural question of whether an application for a concurrent hearing of a leave application and an appeal could be determined by a judge hearing a motion, rather than the President of the Court of Appeal.

Kirk JA refused the adjournment, reasoning that granting it would impose a heavy burden on the parties and interfere with their preparation for the final hearing. The judge noted that the applicant had not yet filed the necessary materials for his leave application, despite previous orders. Regarding the notice of motion, prayers 1 and 2 were dismissed, while prayer 3 was stood over to be heard with the application for leave to appeal. The court also clarified that decisions regarding concurrent hearings are generally administrative matters for the President of the Court of Appeal.

The applicant was ordered to pay the respondents’ costs of the motion incurred to date.

Orders

Orders of the court

(1) The applicant’s application for an adjournment of the hearing of his notice of motion filed on 1 April 2025 is refused.

(2) With respect to the applicant’s notice of motion filed on 1 April 2025:

(a) dismiss prayers 1 and 2;

(b) stand prayer 3 over to be heard together with the application for leave to appeal.

(3) The applicant is to pay the respondents’ costs of the motion incurred to date.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Kearney v Amirbeaggi (No 2) [2025] NSWCA 73
Hearing dates:	14 April 2025
Date of orders:	14 April 2025
Decision date:	14 April 2025
Before:	Kirk JA
Decision:	(1) The applicant’s application for an adjournment of the hearing of his notice of motion filed on 1 April 2025 is refused. (2) With respect to the applicant’s notice of motion filed on 1 April 2025: (a) dismiss prayers 1 and 2; (b) stand prayer 3 over to be heard together with the application for leave to appeal. (3) The applicant is to pay the respondents’ costs of the motion incurred to date.
Catchwords:	CIVIL PROCEDURE – hearings – application to expedite application for leave to appeal where final hearing below soon to commence – prolonged proceeding below with final hearing dates twice postponed on applicant’s application based on mental health arguments – applicant not yet filed materials on application for leave to appeal despite orders – application refused to avoid heavy burden on parties and interference in preparation for final hearing CIVIL PROCEDURE – Court of Appeal – whether should be concurrent hearing of leave application and appeal is administrative decision generally made by President of Court of Appeal – not open to applicant to seek that the decision be made by a judge of appeal determining a motion CIVIL PROCEDURE – hearings – adjournment – adjournment sought when very short period remains before commencement of final hearing
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56-58 Uniform Civil Procedure Rules 2005 (NSW), r 51.14
Cases Cited:	Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 Kearney v Amirbeaggi [2022] NSWSC 130 Kearney v Amirbeaggi [2022] NSWSC 805 Kearney v Amirbeaggi [2022] NSWCA 130 Mohareb v Manly Local Court (2024) 115 NSWLR 229; [2024] NSWCA 233
Category:	Procedural rulings
Parties:	Brian Kearney (Applicant; self-represented) Farshad Amirbeaggi (First respondent) ACN 111 804 383 Pty Ltd t/as Yates Beaggi Lawyers (Second respondent)
Representation:	Counsel: B Smith (Respondents) Solicitors: YPOL Lawyers (Respondents)
File Number(s):	2025/64945
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: Kearney v Amirbeaggi [2025] NSWSC 147; Kearney v Amirbeaggi [2025] NSWSC 196; Kearney v Amirbeaggi [2025] NSWSC 260 Date of Decision: 17 February 2025; 19 February 2025; 7 March 2025; 21 March 2025 Before: Fagan J File Number(s): 2019/96321