Mahommed v Unicomb

[2021] NSWCA 108

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Mahommed v Unicomb [2021] NSWCA 108

Hearing dates:

On the papers

Date of orders:

28 May 2021

Decision date:

28 May 2021

Before:

Macfarlan JA;
Payne JA

Decision:

(1)   Extend the time for filing the summons seeking leave to appeal to the date upon which it was in fact filed.

(2)   Dismiss the summons with costs.

Catchwords:

CIVIL PROCEDURE — proceedings in Equity Division dismissed by first judge — application to second judge to set aside dismissal — application refused as in substance simply an attempt to reargue first decision — leave to appeal against second decision refused

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 91

Limitation Act 1969 (NSW)

Supreme Court Act 1970 (NSW), s 101(2)(e)

Uniform Civil Procedure Rules 2005 (NSW), rr 12.10, 36.16(3A)

Cases Cited:

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6

Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44

De Varda v Austin [2019] NSWCA 133

Mendonca v Tonna (No 3) [2020] NSWCA 332

Category:

Principal judgment

Parties:

Peter Shah Mahommed (Applicant)
Pamela Margaret Unicomb (First Respondent)
Greenhills Securities Pty Limited (Second Respondent)

Representation:

Counsel:
L Smits (sol) (Applicant)
D Allen (First and Second Respondents)

Solicitors:
Leonardus Smits Lawyers (Applicant)
Kekatos Lawyers (First and Second Respondents)

File Number(s):

2021/18226

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2020] NSWSC 1312

Date of Decision:

29 September 2020

Before:

Parker J

File Number(s):

2016/53923

Judgment

1. THE COURT: This judgment relates to a summons seeking leave to appeal filed by Mr Peter Mahommed on 20 January 2021. The respondents are Ms Pamela Unicomb and Greenhills Securities Pty Limited (“Greenhills”), with whom Mr Mahommed had business dealings some years ago.

2. The summons seeks leave to appeal against a decision of Parker J dated 29 September 2020 ([2020] NSWSC 1312). For the reasons appearing below we have concluded that leave should be refused.

3. Parker J’s decision was given in proceedings commenced by Mr Mahommed, and another plaintiff, against Ms Unicomb and Greenhills in 2016. The other plaintiff’s claim is no longer pursued and Mr Mahommed’s claim against Ms Unicomb was dismissed by Robb J on 13 February 2019 following earlier judgments of his Honour of 9 March and 25 September 2018 ([2018] NSWSC 291 and 1450). His Honour gave directions for the further conduct of Mr Mahommed’s claim against Greenhills. That claim is still on foot and the present summons has no bearing on it.

4. Mr Mahommed did not seek to appeal against Robb J’s dismissal of his claim against Ms Unicomb but instead filed in the Equity Division on 27 February 2019 a notice of motion that relevantly sought an order setting aside the order made by Robb J dismissing Mr Mahommed’s claims against Ms Unicomb. Other orders were sought but they were only relevant if the dismissal order was set aside.

5. In his judgment of 29 September…