Medium Neutral Citation: Mahommed v Unicomb [2017] NSWCA 65
Hearing dates: 24 February 2017
Decision date: 03 April 2017
Before: Macfarlan JA at [1];
Ward JA at [2];
McDougall J at [64]
Decision:
1. Set aside the orders made by Gibson DCJ striking out and dismissing the plaintiff’s claim, other than the striking out of the consumer claims (that is, where damages are claimed for misleading and deceptive conduct or unconscionable conduct in breach of one or more of provisions of the Trade Practices Act 1974 (NSW), the Fair Trading Act 1987 (NSW), and the Australian Consumer Law) and other than the costs order made by her Honour.
2. Transfer the proceedings in the District Court to the Supreme Court pursuant to s 140 of the Civil Procedure Act 2005 (NSW).
3. Direct that the proceedings as transferred to the Supreme Court be listed before the Registrar in Equity for directions as to the further conduct of the proceedings, including as to the filing of amended pleadings (noting the undertaking proffered to this Court by the applicant’s solicitor in that regard), and direct that on the filing of an amended statement of claim the applicant file an affidavit verifying that the amended statement of claim has been settled by Senior Counsel.
4. Costs of the proceedings in this Court be the defendant’s costs in the cause in the Equity Division proceedings.

Catchwords:
JUDICIAL REVIEW – application for judicial review under s 69 of the Supreme Court Act 1970 (NSW) – whether District Court judge erred had jurisdiction in relation to claims in debt, quasi-contract, equitable claims, and statutory claims under the Fair Trading Act 1987 (NSW), Trade Practices Act 1974 (Cth), Competition and Consumer Act 2010 (Cth) and Corporations Act 2001 (Cth)
COURTS – scope of the equitable jurisdiction of the District Court – District Court Act 1973 (NSW), s 134
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 144, 140
Competition and Consumer Act 2010 (Cth)
Corporations Act 2001 (Cth), ss 180, 181, 182, 183, 184, 197
District Court Act 1973 (NSW), ss 44, 134
Fair Trading Act 1987 (NSW), s 42
Supreme Court Act 1970 (NSW), s 69, 52, 53
Supreme Court Rules 1970 (NSW), rr 2, 3, 4, 5, 7
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 36.16
Cases Cited: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300
Barnes v Addy (1874) 9 Ch App 244
Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720
Forsyth v Deputy Commissioner of Taxation (2007) 231 CLR 531; [2007] HCA 8
Cai v Guo [2014] NSWSC 380
Chapman v Luminis Pty Ltd (No 5) (2001) 123 FCR 62; [2001] FCA 1106
Commonwealth Bank of Australia v Hadfield [2001] NSWCA 440
Huang v Drumm [2017] NSWCA 29
Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46
Kolavo v…

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 Mahommed v Unicomb

Details

AGLC: Mahommed v Unicomb [2017] NSWCA 65
Case: [2017] NSWCA 65
Decision Date: 03 April 2017

CaseChat Overview and Summary

Mahommed v Unicomb concerned an application for judicial review of decisions made by a District Court judge. The applicant sought to challenge the judge's jurisdiction to hear claims relating to debt, quasi-contract, equitable matters, and various statutory claims, including those under the *Fair Trading Act 1987* (NSW), *Trade Practices Act 1974* (Cth), *Competition and Consumer Act 2010* (Cth), and *Corporations Act 2001* (Cth). The proceedings were heard in the Supreme Court of New South Wales by Macfarlan and Ward JJA, and McDougall J.

The central legal issues before the Supreme Court were whether the District Court judge had erred in her jurisdiction concerning the various claims brought by the plaintiff. Specifically, the court had to determine the scope of the District Court's equitable jurisdiction under section 134 of the *District Court Act 1973* (NSW) and whether the judge had correctly exercised her discretion in striking out and dismissing certain parts of the plaintiff's claim.

The Court reasoned that the District Court possessed jurisdiction to entertain equitable claims, provided they fell within the monetary limits prescribed by the *District Court Act*. However, the Court found that the judge had erred in striking out the equitable claims and the debt and quasi-contract claims, as these were within the court's jurisdiction. The Court also determined that the consumer claims, which involved allegations of misleading and deceptive conduct and unconscionable conduct under Commonwealth and State legislation, were correctly struck out as they exceeded the District Court's monetary jurisdiction.

Consequently, the Supreme Court set aside the orders striking out and dismissing the plaintiff's claim, with the exception of the consumer claims and the associated costs order. The proceedings were ordered to be transferred to the Supreme Court pursuant to section 140 of the *Civil Procedure Act 2005* (NSW). The transferred proceedings were to be listed before the Registrar in Equity for directions, including the filing of amended pleadings, and the costs of the Supreme Court proceedings were to be the defendant's costs in the cause.

Orders

Orders of the court

1. Set aside the orders made by Gibson DCJ striking out and dismissing the plaintiff’s claim, other than the striking out of the consumer claims (that is, where damages are claimed for misleading and deceptive conduct or unconscionable conduct in breach of one or more of provisions of the Trade Practices Act 1974 (NSW), the Fair Trading Act 1987 (NSW), and the Australian Consumer Law) and other than the costs order made by her Honour.

2. Transfer the proceedings in the District Court to the Supreme Court pursuant to s 140 of the Civil Procedure Act 2005 (NSW).

3. Direct that the proceedings as transferred to the Supreme Court be listed before the Registrar in Equity for directions as to the further conduct of the proceedings, including as to the filing of amended pleadings (noting the undertaking proffered to this Court by the applicant’s solicitor in that regard), and direct that on the filing of an amended statement of claim the applicant file an affidavit verifying that the amended statement of claim has been settled by Senior Counsel.

4. Costs of the proceedings in this Court be the defendant’s costs in the cause in the Equity Division proceedings.

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.

Citations

AGLC Citation

Mahommed v Unicomb [2017] NSWCA 65

Most Recent Citation

Pentridge Village Pty Ltd (in liq) v Capital Finance Australia Ltd [2018] VSC 633

Cases citing this decision · 28 of 28 shown

Australian Military Bank Ltd v Pike
[2025] NSWDC 311

…orthern Developments Pty Ltd v Lane Harmer v Federal Commissioner of Taxation (1991) 173 CLR 264 Huang v Drumm [2017] NSWCA 29 Mahommed and Unicomb [2017] NSWCA 65 McDonough v The Owners Strata Plan [2014] NSWSC 1708 Re ANZ Banking Group Limited Funds in Court [2014] NSWSC 1076 Reozone Pty Ltd v Santoro [2018] NSW…
Burrows v Houda (No 3)
[2025] NSWDC 77 Para 17

…Although the parties did not refer to it, Ms Burrows could have considered seeking to raise the argument that succeeded in Mahommed v Unicomb [2017] NSWCA 65, namely that although she had started in the wrong court, the fact that this court did not have jurisdiction to make the orders sought in relation to cross-v…
Nichles v The King (No 1)
[2024] NSWDC 625 Para 40

…The next submission made by the appellant was that this Court had jurisdiction because of the decision of Mahommed v Unicomb [2017] NSWCA 65. The appellant submitted that the making of a permanent stay order was a civil decision and therefore it could be dealt with under s 144 of the Civil Procedure Act 2005 . In…
Towns v Central Coast Council
[2024] NSWDC 399 Para 28

…2005 (NSW) is predicated upon there being a cause of action of some kind capable of being identified, so the concerns raised in Mahommed v Unicomb [2017] NSWCA 65 (as to which, see Mahommed v Unicomb (No 2) [2018] NSWSC 1450) would not apply.…
Duckham v Duckham
[2023] NSWDC 524 Para 7

…t by statue either expressly or by necessary implication: Pelechowski v The Registrar Court of Appeal (NSW) (1999) 198 CLR 435 and Mohammed v Unicomb [2017] NSWCA 65 at [38]. This Court has a limited jurisdiction in certain circumstances to make declarations: see paragraph 45 of Mohammed v Unicomb, above. The juri…
Martin v Najem
[2022] NSWDC 479 Para 124

…ions before the Court of Appeal but, as both were hopeless cases, neither was a suitable vehicle. In the first of these appeals, Mahommed v Unicomb [2017] NSWCA 65, the Court of Appeal accepted that the plaintiff’s statement of claim (which had been struck out as both hopeless and outside this court’s jurisdiction…
Glenn v Kemp
[2021] NSWDC 656 Para 9

…Section 144 of the Civil Procedure Act is also to be borne in mind. This was considered in Mahommed v Unicomb [2017] NSWCA 65 by the Court of Appeal. The question to be determined is whether the Court has a doubt that it has jurisdiction to determine the matters in the Cross-Claim. In Mahommed v Unicomb the Court…
Mahommed v Greenhills Securities Pty Ltd
[2021] NSWSC 1178 Para 8

…of claim the applicant file an affidavit verifying that the amended statement of claim has been settled by senior counsel”: Mahommed v Unicomb [2017] NSWCA 65, order 3.…
Scottish Pacific Trade Limited (a Company Incorporated in Hong Kong CR No: 1415813) v The Motorhome Conversion Company Pty Limited ACN 122 829 789
[2021] NSWDC 97 Para 11

…Having regard to the comments of the Court of Appeal in Mahommed v Unicomb [2017] NSWCA 65, particularly at paragraphs 25 and 38 and following, it appears to me that this Court, where there is a doubt or where it is clear that it does not have equitable jurisdiction under s 134, must transfer the matter to the Sup…
Mahommed v Unicomb (No 3)
[2020] NSWSC 1312 Para 13

…supervisory jurisdiction ( Supreme Court Act 1970 (NSW), s 69). That application was decided by the Court of Appeal in April 2017: Mahommed v Unicomb [2017] NSWCA 65. The leading judgment was written by Ward JA, with whom Macfarlan JA and McDougall J agreed.…
Edwards v Gillespie
[2020] NSWDC 475 Para 7

…nt equitable relief and/or permanent injunctions is a complex issue for which no suitable vehicle for argument has yet been found: Mahommed v Unicomb [2017] NSWCA 65 at [57] – [58].…
BOC v MDL
[2019] NSWSC 278 Para 33

…he section applies to proceedings under subdivision 2 of Division 8 of Part 3 of the District Court Act, which includes s. 134. In Mahommed v Unicomb [2017] NSWCA 65 at [52]-[53], Ward JA (with whom Macfarlan JA and McDougall J agreed) set out the following principles regarding the operation of s 144 of the Civil…
Davis v Viglianti (No 2)
[2018] NSWDC 413 Para 36

…owers to make orders of this kind is one of a series of jurisdictional uncertainties both in legislative and judgment-based law: Mahommed v Unicomb [2017] NSWCA 65. Ancillary orders of the kind I made in my previous judgment end with the handing down of judgment. Mr Baran tells me that his client will seek an unde…
Pentridge Village Pty Ltd (in liq) v Capital Finance Australia Ltd
[2018] VSC 633 Para 1

…l Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 (Rares J). [101](2001) 123 FCR 62, 116, [204] (von Doussa J). [102][2017] NSWCA 65, [59] (Macfarlan J and McDougall JJA agreeing at [1] and [64]).…
Neskovic v Beydoun
[2018] NSWDC 379 Para 7

…s mandatory. The word “must” should be carefully attended to by judicial officers, for the reasons explained by Ward JA in Mahommed v Unicomb [2017] NSWCA 65.…
Jefferis v Gells Pty Ltd trading as Gells Lawyers
[2018] NSWDC 288

…inance Pty Ltd [2008] NSWCA 343 LSKF Holdings Pty Ltd v Shield Lifestone Holdings Pty Ltd [2018] NSWCA 129 Mahommed v Unicomb [2017] NSWCA 65 Meehan v Jones (1982) 149 CLR 571; [1982] HCA 52 Mega-Top Cargo Pty Ltd v Moneytech Services Pty Ltd [2015] NSWCA 402 New South Wales Land and Housing Corporation v Quinn [2…
Nova 96.9 Pty Ltd v Natvia Pty Ltd
[2018] NSWSC 1288 Para 11

…ision 8 of Part 3 of the DCA and, hence, that s 144 of the CPA, to which different considerations apply, is not relevant here: see Mahommed v Unicomb [2017] NSWCA 65 at [52] per Ward JA (with whom Macfarlan JA and McDougall J agreed).…
Bendigo and Adelaide Bank Limited v Jaeger
[2018] NSWDC 244 Para 19

…ct of s 134(1)(e) of the DCA, the application should be transferred to the Supreme Court by reason of s 144(2) of the CPA. 15. Mahommed v Unicomb [2017] NSWCA 65 at [53]-[55]. 16. See Project Blue Sky Inc v Australia Broadcasting Authority (1998) 194 CLR 355, 381 [69], Certain Lloyd’s Underwriters Subscribing to C…
Ventura v Higgins
[2018] NSWSC 909 Para 39

…clearly fall outside this court’s equitable jurisdiction, the limited nature of which is described by Ward JA in Mahommed v Unicomb [2017] NSWCA 65 at [39]–[47]. [20] There can be no doubt that the inherent jurisdiction of this court could be relevant to applications such as the present. In Australian Beverage Dis…
Pedro Alfaro trading as Palfaro Cleaning Services ABN: 57 267 431 409 v Taylor
[2018] NSWDC 134 Para 92

…extremely difficult and (thanks to the multiple publication rule) none of the limitation issues which played so decisive a role in Mohammed v Unicomb [2017] NSWCA 65 need trouble any court. In addition, he will be able to pray in aid the history of these proceedings if any application to refuse leave is brought un…
Ventura v Higgins (No. 2)
[2018] NSWDC 78 Para 4

…s 140 for a court to take a step of its own motion, even where it is neither proposed nor consented to by the parties: see Mahommed v Unicomb [2017] NSWCA 65.…
Ventura v Higgins
[2018] NSWDC 49 Para 19

…ef sought would clearly fall outside this court’s equitable jurisdiction, the limited nature of which is described by Ward JA in Mahommed v Unicomb [2017] NSWCA 65 at [39] – [47].…
Mahommed v Unicomb
[2018] NSWSC 291 Para 19

…icient for the present to note that the principal judgment was given in the Court of Appeal by Ward JA (as her Honour then was) in Mahommed v Unicomb [2017] NSWCA 65, and that her Honour noted at [3] that Mr Mahommed had "brought a raft of claims" against Mrs Unicomb and Greenhills. It was conceded by the solicito…
Auditore v State of New South Wales
[2017] NSWDC 150 Para 46

…ntire action may need to be exercised with caution where there is a limitation period issue, for the reasons set out by Ward JA in Mahommed v Unicomb [2017] NSWCA 65.…
K & M Prodanovski Pty Ltd v Northshore Car Rentals Pty Ltd
[2017] NSWSC 625 Para 32

…erred to this Court at that time in any event under s 144(2) of the CPA. The Court of Appeal recently considered that provision in Mahommed v Unicomb [2017] NSWCA 65, in which the Court (Ward JA, with whom Macfarlan JA and McDougall J agreed) held (at [52]) that if a District Court judge is of the view that he or…
Owners Corporation SP 69470 v Owners Corporation SP 69948
[2017] NSWSC 617 Para 7

…On 3 April 2017, whilst his Honour was still reserved, the decision of the Court of Appeal in Mahommed v Unicomb [2017] NSWCA 65 was delivered. In that decision the Court (Ward JA, with whom Macfarlan JA and McDougall J agreed) held (at [52]) that if a District Court judge is of the view that he or she does not ha…
Hewit v Galletta
[2017] NSWDC 129 Para 20

…I am conscious in this regard that this may create limitation problems and I am conscious also of what the Court of Appeal said in Mahommed v Unicomb [2017] NSWCA 65 but in my view, both for case management reasons and conformably with my obligations under ss 56 – 62 Civil Procedure Act 2005 (NSW), courts must tak…
Owners Corporation Strata Plan 69470 v Owners Corporation Strata Plan 69948 (No 1)
[2017] NSWDC 181 Para 23

…determine the equitable claim[s] raised on the pleadings” the District Court is bound to transfer the proceedings to the Supreme Court. [24] 24. [2017] NSWCA 65 at [57] (Ward JA with whom Macfarlan JA and McDougall J agreed)…

View all 28 citing cases →

Cases cited in this decision · 28 of 28 shown

Huang v Drumm
[2017] NSWCA 29 Para 46

…that it does not fall within subsection 1(h). This decision has recently been the subject of a grant by this Court of leave to appeal ( Huang v Drumm [2017] NSWCA 29). In Huang , the claims were for breach of trust, breach of fiduciary duty and breach of a professional duty of care. The issue there in dispute was…
New South Wales Land and Housing Corporation v Quinn
[2016] NSWCA 338 Para 40

…In NSW Land and Housing Corporation v Quinn [2016] NSWCA 338, this Court considered that there was force to an argument to the effect that “action” in s 44(1) means the whole of the proceedings, such that if one cause of action in the proceedings would have been assigned under the Supreme Court Act or rules at the…
Spratt v Perilya Broken Hill Ltd; Spratt v Rowe
[2016] NSWCA 192 Para 37

…eated as a full hearing on the merits of the underlying claims (see also in this regard the remarks of Leeming JA in Spratt v Perilya Broken Hill Ltd [2016] NSWCA 192 at [59]-[68] as to the need for clarity and precision as to the basis on which the claim for judicial review is advanced).…
Mahommed v Unicomb
[2016] NSWDC 114 Para 2

…ut and dismissing Mr Mahommed’s claim against the first and second respondents (Mrs Unicomb and Greenhills Securities Pty Ltd) ( Mahommed v Unicomb [2016] NSWDC 114) (the Dismissal Judgment). The second is the subsequent decision of Balla DCJ dismissing Mr Mahommed’s application pursuant to r 36.16 of the Uniform C…
Xiang v Ward
[2016] NSWDC 64 Para 24

…rovided the registrar with evidence of service (at [50]); and, second, that Mr Mahommed had been provided with a copy of the decision in Xiang v Ward [2016] NSWDC 64 at the first return date of the matter and had been invited either to amend his claim or bring an application in the Supreme Court but had not done s…
Smits v Unicomb; Smits and Mahommed v Unicomb
[2016] NSWDC 26 Para 27

…d a stay of the proceedings in the same terms as other proceedings had been stayed – there referring to Smits v Unicomb; Smits & Mahommed v Unicomb [2016] NSWDC 26. In that case, Levy SC DCJ had noted (at [10]) that a pivotal issue to be determined was the validity or otherwise of the assignment to Mr Mahommed of…
Wende v Horwath (No 2)
[2015] NSWCA 416 Para 35

…The nature of proceedings in which the Supreme Court’s supervisory jurisdiction is sought to be exercised was explained in Wende v Horwath (No 2) [2015] NSWCA 416 by Beazley ACJ (at [15]-[17] as follows):…
McDonough v Owners Strata Plan No 57504
[2014] NSWSC 1708 Para 46

…In McDonough v Owners Strata Plan No 57504 [2014] NSWSC 1708, Brereton J held that a claim for breach of trust was a claim to which subsection 1(e) applied such that it does not fall within subsection 1(h). This decision has recently been the subject of a grant by this Court of leave to appeal ( Huang v Drumm [2017]…
Wang v Farkas (No 3)
[2014] NSWCA 111 Para 36

…pen as a matter of law (referring to what was said in SAS Trustee Corporation v Woollard [2014] NSWCA 75 per Basten JA at [108]; Wang v Farkas (No 3) [2014] NSWCA 111 per Basten JA at [10]). Her Honour, on reflection, considered the better view to be that there was not the power to make substantive orders on such a…
Cai v Guo
[2014] NSWSC 380 Para 61

…Accordingly, this Court should of its own motion (pursuant to s 140 of the Civil Procedure Act – see for example Cai v Guo [2014] NSWSC 380), order that the District Court proceedings be transferred to the Supreme Court and listed before the Registrar in the Equity Division for directions as to the ongoing conduct…
SAS Trustee Corporation v Woollard
[2014] NSWCA 75 Para 36

…rs, including in respect of costs where only one result was open as a matter of law (referring to what was said in SAS Trustee Corporation v Woollard [2014] NSWCA 75 per Basten JA at [108]; Wang v Farkas (No 3) [2014] NSWCA 111 per Basten JA at [10]). Her Honour, on reflection, considered the better view to be tha…
Kirk v Industrial Court of New South Wales
[2010] HCA 1

…f the decision in Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; 239 CLR 531 was that the same position pertained when this Court was exercising its s 69 jurisdiction: see at [110]. [my emphasis]…
Wentworth v Rogers & Anor
[2007] HCATrans 747 Para 58

…In those circumstances it is not appropriate (nor is this case a suitable vehicle) to consider the arguments raised as to the scope of the equitable jurisdiction to entertain the equitable claims made by Mr Mahommed. That is particularly so in light of the recent grant of leave to appeal in Huang on…
Forsyth v Deputy Commissioner of Taxation
[2007] HCA 8 Para 41

…date is 2 February 1998, that being the date on which s 44(1)(a) came into operation ( Forsyth v Deputy Commissioner of Taxation (2007) 231 CLR 531; [2007] HCA 8 at 549). As at 2 February 1998, the relevant provisions of the Supreme Court Act as to the assignment of business were set out in ss 52 and 53 of the…
Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd
[2006] FCA 1352 Para 59

…e is clear authority that such claims are not assignable (see for example Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 at [53]; Chapman v Luminis Pty Ltd (No 5) (2001) 123 FCR 62; [2001] FCA 1106 at [204]-[207]), the order striking out those parts of the proceedings s…
Chapman v Luminis Pty Ltd
[2003] FCAFC 162 Para 59

…for example Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 at [53]; Chapman v Luminis Pty Ltd (No 5) (2001) 123 FCR 62; [2001] FCA 1106 at [204]-[207]), the order striking out those parts of the proceedings should stand.…
Kolavo v Pitsikas
[2003] NSWCA 59 Para 45

…tion pursuant to s 134(1)(h), the District Court can in certain circumstances make declarations ( Kolavo v Pitsikas (t/as Comino and Pitsikas) & Anor [2003] NSWCA 59).…
Wentworth v Rogers (No 9)
[2002] NSWSC 921 Para 58

…and determined by Gibson DCJ (see Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 303 (Mason CJ); at 309 (Brennan J); Wentworth v Rogers (No 9) (1987) 8 NSWLR 388 at [394E-F] (Kirby P, as his Honour then was)).…
Commonwealth Bank of Australia v Hadfield
[2001] NSWCA 440 Para 45

…gs under s 134(1)(h) is that which applies to actions in the District Court for damages at law ($750,000) ( Commonwealth Bank of Australia v Hadfield [2001] NSWCA 440). When exercising jurisdiction pursuant to s 134(1)(h), the District Court can in certain circumstances make declarations ( Kolavo v Pitsikas (t/as C…
Chapman v Luminis Pty Ltd
[2001] FCA 1580 Para 59

…The first of the qualifications to which I refer above relates to the consumer claims that were included in the pleading. It was conceded by Mr Smits in this Court that Loire would be the only potential plaintiff with standing in respect of claims for loss or damage suffered by reason of the alleged…
Chapman v Luminis Pty Ltd (No 4)
[2001] FCA 1106 Para 59

…Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 at [53]; Chapman v Luminis Pty Ltd (No 5) (2001) 123 FCR 62; [2001] FCA 1106 at [204]-[207]), the order striking out those parts of the proceedings should stand.…
Craig v South Australia
[1995] HCA 58

…permit the superior court to substitute its own orders for those that it considers the inferior court ought to have made: Craig v South Australia [1995] HCA 58; 184 CLR 163. Rather, where the writ ran, the appropriate order was the quashing of the impugned order or decision upon one or more of a number of establ…
Autodesk Inc v Dyason (No 2)
[1993] HCA 6 Para 58

…attempt to re-argue the merits of the application that had already been fully argued and determined by Gibson DCJ (see Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 303 (Mason CJ); at 309 (Brennan J); Wentworth v Rogers (No 9) (1987) 8 NSWLR 388 at [394E-F] (Kirby P, as his Honour then was)).…
Jago v District Court (NSW)
[1989] HCA 46 Para 38

…tion ( Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19 at [121]; Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46).…
House v R
[1936] HCA 40

…1. The Primary Judge made arguable appellable errors referred to in House v The King (1936) 55 CLR 499 at 504-5. 2. The Primary Judge erred in deciding that the Respondents’ Amended Notice of Motion heard on 21 June 2016 should be granted and that the proceedings should be struck out and dismissed pursuant to UCPR r…
Barnes v Addy
9 Ch App 244 Para 3

…d claims under ss 180-184 of the Corporations Act ([21]-[23]). The equitable claims also included (at [24]) claims under the two limbs of the rule in Barnes v Addy (1874) 9 Ch App 244 against both Mrs Unicomb and Greenhills for knowing receipt and participation in breach(es) of trust.…
Barnes v Addy
(1874) 9 Ch App 244 Para 3

…ss 180-184 of the Corporations Act ([21]-[23]). The equitable claims also included (at [24]) claims under the two limbs of the rule in Barnes v Addy (1874) 9 Ch App 244 against both Mrs Unicomb and Greenhills for knowing receipt and participation in breach(es) of trust.…
House v The King
63 WN 176

…1. The Primary Judge made arguable appellable errors referred to in House v The King (1936) 55 CLR 499 at 504-5. 2. The Primary Judge erred in deciding that the Respondents’ Amended Notice of Motion heard on 21 June 2016 should be granted and that the proceedings should be struck out and dismissed pursuant to UCPR rr 13.4…

Legislation cited in this decision · 14

Corporations Act 2001 (Cth)
180, 181, 182, 183, 184, 197 7 mentions (from Para 3)
Supreme Court Rules 1970 (NSW)
2, 3, 4, 5, 7 6 mentions (from Para 42)
Supreme Court Act 1970 (NSW)
52, 53, 69 4 mentions (from Para 2)
Uniform Civil Procedure Rules 2005 (NSW)
13.4, 14.28, 36.16 4 mentions (from Para 2)
Civil Procedure Act 2005 (NSW)
140, 144 3 mentions (from Para 49)
District Court Act 1973 (NSW)
134, 44 3 mentions (from Para 5)
Fair Trading Act 1987 (WA)
42 2 mentions (from Para 3)
Judiciary Act 1903 (Cth)
12GF, 13DA 2 mentions
Bankruptcy Act 1966 (Cth)
1 mention
Competition and Consumer Act 2010 (Cth)
1 mention (from Para 3)
Limitation Act 1969 (NSW)
1 mention
Sok v Minister for Immigration and Citizenship
1 mention
Trade Practices Act 1974 (Cth)
1 mention (from Para 3)
Trade Practices Act 1987 (Cth)
1 mention (from Para 1)

Medium Neutral Citation:	Mahommed v Unicomb [2017] NSWCA 65
Hearing dates:	24 February 2017
Decision date:	03 April 2017
Before:	Macfarlan JA at [1]; Ward JA at [2]; McDougall J at [64]
Decision:	1. Set aside the orders made by Gibson DCJ striking out and dismissing the plaintiff’s claim, other than the striking out of the consumer claims (that is, where damages are claimed for misleading and deceptive conduct or unconscionable conduct in breach of one or more of provisions of the Trade Practices Act 1974 (NSW), the Fair Trading Act 1987 (NSW), and the Australian Consumer Law) and other than the costs order made by her Honour. 2. Transfer the proceedings in the District Court to the Supreme Court pursuant to s 140 of the Civil Procedure Act 2005 (NSW). 3. Direct that the proceedings as transferred to the Supreme Court be listed before the Registrar in Equity for directions as to the further conduct of the proceedings, including as to the filing of amended pleadings (noting the undertaking proffered to this Court by the applicant’s solicitor in that regard), and direct that on the filing of an amended statement of claim the applicant file an affidavit verifying that the amended statement of claim has been settled by Senior Counsel. 4. Costs of the proceedings in this Court be the defendant’s costs in the cause in the Equity Division proceedings.
Catchwords:	JUDICIAL REVIEW – application for judicial review under s 69 of the Supreme Court Act 1970 (NSW) – whether District Court judge erred had jurisdiction in relation to claims in debt, quasi-contract, equitable claims, and statutory claims under the Fair Trading Act 1987 (NSW), Trade Practices Act 1974 (Cth), Competition and Consumer Act 2010 (Cth) and Corporations Act 2001 (Cth) COURTS – scope of the equitable jurisdiction of the District Court – District Court Act 1973 (NSW), s 134
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 144, 140 Competition and Consumer Act 2010 (Cth) Corporations Act 2001 (Cth), ss 180, 181, 182, 183, 184, 197 District Court Act 1973 (NSW), ss 44, 134 Fair Trading Act 1987 (NSW), s 42 Supreme Court Act 1970 (NSW), s 69, 52, 53 Supreme Court Rules 1970 (NSW), rr 2, 3, 4, 5, 7 Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 36.16
Cases Cited:	Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 Barnes v Addy (1874) 9 Ch App 244 Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 Forsyth v Deputy Commissioner of Taxation (2007) 231 CLR 531; [2007] HCA 8 Cai v Guo [2014] NSWSC 380 Chapman v Luminis Pty Ltd (No 5) (2001) 123 FCR 62; [2001] FCA 1106 Commonwealth Bank of Australia v Hadfield [2001] NSWCA 440 Huang v Drumm [2017] NSWCA 29 Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46 Kolavo v…