McEvoy v Wagglens Pty Ltd - [2021] NSWCA 104

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: McEvoy v Wagglens Pty Ltd [2021] NSWCA 104
Hearing dates: 21 May 2021
Date of orders: 24 May 2021
Decision date: 24 May 2021
Before: Bell P; Payne JA
Decision:
Application for leave to appeal dismissed with costs

Catchwords:
APPEAL – application for leave to appeal – no issue of principle or question of public importance identified – where amount in issue substantially less than statutory threshold pursuant to s 101(2)(r) of the Supreme Court Act 1970 (NSW)

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 60
Fair Work Act 2009 (Cth) s 550
Limitation Act 1969 (NSW) s 16
Local Court Act 2007 (NSW) s 40
Supreme Court Act 1970 (NSW) s 101(2)(r)
Uniform Civil Procedure Rules 2005 (NSW) rr 14.28, 36.15, 36.16(2)(b), 51.10(2)

Cases Cited:
Be Financial Pty Ltd as trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Berry v Nicholls [2016] NSWCA 272
Carolan v AMF Bowling Pty Ltd (t/as Bennetts Green Bowl) [1995] NSWCA 69
Cooper v Atkin [2021] NSWCA 82
Gaynor v Attorney General of New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48
Gibson v Drumm [2016] NSWCA 206
Giles v La Rosa (No 2) [2018] NSWCA 297
Girgis v Oueik [2018] NSWCA 314
Jaycar Pty Limited v Lombardo [2011] NSWCA 284
Lukaszewicz v Polish Club Ltd [2020] NSWCA 99
McEvoy v Wagglens Pty Ltd [2020] NSWCA 330
Nguyen v Tran [2018] NSWCA 215
Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84
NRMA Insurance for the Nominal Defendant v Al-Bayati [2018] NSWCA 258
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
Price v Price [2020] NSWCA 312
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206
The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26
Yuen v Chan [2019] NSWCA 63

Category: Principal judgment
Parties: Fentin McEvoy (Applicant)
Wagglens Pty Ltd (First Respondent)
Roderick Cloonan Marr (Second Respondent)
Representation:
Counsel:
In person (Applicant)
Ms K MacDonald (Solicitor) (Respondents)
Solicitors:
KMD Law & Advisory (Respondents)

File Number(s): 2020/173957
Publication restriction: N/A
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2020] NSWSC 575

Date of Decision:

15 May 2020

Before:

Ierace J

File Number(s):

2019/45874

Judgment

THE COURT: Before this Court is an application for leave to appeal brought by Mr Fentin McEvoy (Mr McEvoy) from a decision of Ierace J: see McEvoy v Wagglens Pty Ltd [2020] NSWSC 575. The primary judge refused Mr McEvoy leave to appeal from a decision of the Local Court of New South Wales before Reiss LCM on 4 December 2018.
The decision of the Magistrate was one dismissing a notice of motion to vary or set aside a judgment given in favour of Wagglens Pty Ltd (Wagglens) and its director Mr Roderick Marr (Mr Marr) on 23…

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: [2021] NSWCA 104
Decision Date: 24 May 2021

CaseChat Overview and Summary

The applicant, McEvoy, sought leave to appeal against a decision of the primary judge in a dispute with Wagglens Pty Ltd. The application was heard by Bell P and Payne JA of the Court of Appeal of New South Wales.

The central issue before the Court of Appeal was whether leave to appeal should be granted, given that the amount in dispute was substantially less than the statutory threshold stipulated in section 101(2)(r) of the *Supreme Court Act 1970* (NSW). This provision generally requires an issue of principle or a question of public importance for leave to appeal to be granted in such circumstances.

The Court of Appeal found that the applicant had failed to identify any issue of principle or question of public importance that would justify granting leave to appeal. In the absence of such a demonstration, and given the amount in dispute fell below the statutory threshold, the Court concluded that the criteria for granting leave to appeal were not met.

Consequently, the application for leave to appeal was dismissed, and the applicant was ordered to pay the costs of Wagglens Pty Ltd.

Orders

Orders of the court

Application for leave to appeal dismissed with costs

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:	McEvoy v Wagglens Pty Ltd [2021] NSWCA 104
Hearing dates:	21 May 2021
Date of orders:	24 May 2021
Decision date:	24 May 2021
Before:	Bell P; Payne JA
Decision:	Application for leave to appeal dismissed with costs
Catchwords:	APPEAL – application for leave to appeal – no issue of principle or question of public importance identified – where amount in issue substantially less than statutory threshold pursuant to s 101(2)(r) of the Supreme Court Act 1970 (NSW)
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 60 Fair Work Act 2009 (Cth) s 550 Limitation Act 1969 (NSW) s 16 Local Court Act 2007 (NSW) s 40 Supreme Court Act 1970 (NSW) s 101(2)(r) Uniform Civil Procedure Rules 2005 (NSW) rr 14.28, 36.15, 36.16(2)(b), 51.10(2)
Cases Cited:	Be Financial Pty Ltd as trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Berry v Nicholls [2016] NSWCA 272 Carolan v AMF Bowling Pty Ltd (t/as Bennetts Green Bowl) [1995] NSWCA 69 Cooper v Atkin [2021] NSWCA 82 Gaynor v Attorney General of New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48 Gibson v Drumm [2016] NSWCA 206 Giles v La Rosa (No 2) [2018] NSWCA 297 Girgis v Oueik [2018] NSWCA 314 Jaycar Pty Limited v Lombardo [2011] NSWCA 284 Lukaszewicz v Polish Club Ltd [2020] NSWCA 99 McEvoy v Wagglens Pty Ltd [2020] NSWCA 330 Nguyen v Tran [2018] NSWCA 215 Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84 NRMA Insurance for the Nominal Defendant v Al-Bayati [2018] NSWCA 258 PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 Price v Price [2020] NSWCA 312 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 Yuen v Chan [2019] NSWCA 63
Category:	Principal judgment
Parties:	Fentin McEvoy (Applicant) Wagglens Pty Ltd (First Respondent) Roderick Cloonan Marr (Second Respondent)
Representation:	Counsel: In person (Applicant) Ms K MacDonald (Solicitor) (Respondents) Solicitors: KMD Law & Advisory (Respondents)
File Number(s):	2020/173957
Publication restriction:	N/A
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2020] NSWSC 575 Date of Decision: 15 May 2020 Before: Ierace J File Number(s): 2019/45874