Court of Appeal
New South Wales
Case Title: May v Brahmbhatt Medium Neutral Citation: [2013] NSWCA 309 Hearing Date(s): 15 July 2013 Decision Date: 18 September 2013 Before: Beazley P at [1];
Basten JA at [46];
Bergin CJ in Eq at [57]Decision: (1) Refuse leave to appeal on ground 1 of the notice of appeal;
(2) Grant leave to appeal on ground 2 of the notice of appeal;
(3) Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: APPEAL - civil - leave to appeal - whether arguable case - jurisdiction under the District Court Act 1973
APPEAL - civil - leave to appeal - whether trial judge denied applicant procedural fairness
CONTRACTS - general contractual principles - harsh and unconscionable contracts and statutory remedies - Contracts Review Act 1980, s 6(2) - whether contract entered in the course of or for the purpose of a trade, business or profession
CONTRACTS - general contractual principles - harsh and unconscionable contracts and statutory remedies - Contracts Review Act 1980, s 7 - whether contract was unjust at the time it was madeLegislation Cited: Contracts Review Act 1980
District Court Act 1973
Local Court Act 2007
Supreme Court Act 1970Cases Cited: Australia and New Zealand Banking Group v Karam [2005] NSWCA 344; 64 NSWLR 149
Australian Guarantee Corporation Ltd v McClelland (1993) ASC 56-230
Elkofairi v Permanent Trustee Co Ltd [2002] NSWCA 413; 11 BPR 20,841
Hogan v Howard Finance Limited (1987) ASC 55-594
Kowalczuk v Accom Finance Pty Ltd [2008] NSWCA 343; 252 ALR 55
Perpetual Trustee Company Limited v Khoshaba [2006] NSWCA 41; 14 BPR 26,639
Riz v Perpetual Trustee Australia Ltd [2007] NSWSC 1153; NSW ConvR 56-198
West v AGC (Advances) Ltd (1986) 5 NSWLR 610Category: Principal judgment Parties: Stephen May (Appellant)
Rajesh Brahmbhatt (First Respondent)
Sheema Rajesh Brahmbhatt (Second Respondent)Representation - Counsel: Counsel:
In person (Appellant)
R White (Respondents)File Number(s): CA 2012/7389 Decision Under Appeal - Court / Tribunal: District Court - Before: Olsson DCJ - Date of Decision: 09 December 2011 - Citation: Rajesh Brahmbhatt and Sheema Brahmbhatt v Stephen May - Court File Number(s): 2010/131109
HEADNOTE
[This headnote is not to be read as part of the judgment]
On 9 December 2011, Olsson DCJ gave judgment for the respondents in the sum of $98,546.30 against Stephen May (the applicant), being in respect of rental payments that the applicant had guaranteed under a lease entered into between Belltree Constructions Pty Limited (Belltree Constructions) and the respondent.
The applicant sought leave to appeal the decision of Olsson DCJ on two grounds:
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- Case
- [2013] NSWCA 309
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the applicant had an arguable case for leave to appeal under the *District Court Act 1973* and, more specifically, whether the trial judge had denied the applicant procedural fairness. Further, the court considered whether the contract in question was entered into in the course of or for the purpose of a trade, business, or profession, which would render it ineligible for review under section 6(2) of the *Contracts Review Act 1980*. The court also had to determine if the contract was unjust at the time it was made, pursuant to section 7 of the *Contracts Review Act 1980*.
The Court of Appeal determined that the applicant did not have an arguable case in relation to the first ground of appeal, which likely concerned the application of section 6(2) of the *Contracts Review Act 1980*. However, the court found that there was an arguable case concerning the second ground of appeal, relating to procedural fairness. Despite granting leave to appeal on this specific ground, the Court of Appeal ultimately dismissed the appeal, ordering that the applicant pay the respondent's costs.
Orders
Orders of the court
(1) Refuse leave to appeal on ground 1 of the notice of appeal;
(2) Grant leave to appeal on ground 2 of the notice of appeal;
(3) Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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
Established by: BERGIN CJ
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