Megally v Bojanic - [2024] NSWSC 869

Supreme Court

New South Wales

Medium Neutral Citation: Megally v Bojanic [2024] NSWSC 869
Hearing dates: 25 June 2024
Date of orders: 25 June 2024
Decision date: 25 June 2024
Jurisdiction: Common Law
Before: Dhanji J
Decision:
Motion seeking an application for an adjournment is dismissed.

Catchwords:
CIVIL PROCEDURE – notice of motion – adjournment - application to vacate hearing – adjournment sought on the basis that counsel has not had time to prepare reply submissions – unsatisfactory reason for adjournment – motion dismissed

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Local Court Act2007 (NSW)

Cases Cited:
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Texts Cited:
Supreme Court Common Law Division - General Practice Note SC CL 1

Category: Procedural rulings
Parties: John Rauof Megally (Plaintiff)
Andja Bojanic (Defendant)
Representation:
Counsel:
F McNeil (Plaintiff/Applicant on motion)
W Richey (Defendant/Respondent on motion)
Solicitors:
State Lawyers (Plaintiff/Applicant on motion)
TurksLegal (Defendant/Respondent on motion)

File Number(s): 2021/175446
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Civil

Citation:

Megally v Bojanic [2023] NSWLC 9

Date of Decision:

24 August 2023

Before:

Brender LCM

File Number(s):

2021/175446

Extempore JUDGMENT (revised)

HIS HONOUR: I have before me a motion seeking to vacate the hearing of the appeal in this matter. Filed in support of that motion is an affidavit of Mr Zubin Hiramanek of 21 June 2024 and a further affidavit of Mr Hiramanek of 24 June 2024. The motion is opposed. The respondent in opposing the motion read an affidavit of Mr Demos of 24 June 2024.
The appeal in this matter is listed before me for hearing today. The appeal is concerned with a decision in the Local Court and is brought pursuant to the Local Court Act2007 (NSW) which allows for an appeal from that Court to this Court as of right in relation to the question of law, s 39 Local Court Act, or by leave in relation to the question of mixed fact and law, s 40(1). Noting additionally, as relevant here, that if the appeal relates to an order as to costs leave is required, s 40(2).
The applicant was the plaintiff in the Local Court. The respondent was the defendant in the Local Court. As a result of the proceedings in the Local Court the applicant obtained a verdict and judgment for damages in the sum of $7,000 plus interest in the sum of $941.30. The applicant was additionally ordered to pay 95 percent of the respondent's costs as agreed or assessed on the ordinary basis.
The applicant by his amended summons seeks orders setting aside the orders of the Court below with respect to the award of damages and the award of costs. In substitution of those orders the amended summons seeks:

"4 Order that there be judgment against the Respondent ~~defendant~~ in favour of the ~~plaintiff~~ Appellant in accordance with the amounts set out in…

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 Megally v Bojanic

Details

AGLC: Megally v Bojanic [2024] NSWSC 869
Case: [2024] NSWSC 869
Decision Date: 25 June 2024

CaseChat Overview and Summary

The matter before the court involved Megally, the applicant, and Bojanic, the respondent. The applicant sought an adjournment of a hearing on the basis that their counsel had not had sufficient time to prepare reply submissions. The application was considered in the Supreme Court of Victoria. The primary legal issue before the court was whether the reason provided by the applicant for seeking an adjournment was satisfactory and sufficient to warrant a postponement of the hearing.

The court considered the circumstances of the case and the reasons given for the adjournment. It was noted that the applicant had been aware of the need to prepare reply submissions well in advance of the hearing. The court also highlighted that the applicant's counsel had not demonstrated any exceptional circumstances that would justify an adjournment. The court found that the reason provided by the applicant for seeking the adjournment was unsatisfactory, as it did not meet the standard required to warrant a postponement of the hearing. The court ultimately dismissed the application to vacate the hearing.

The court's decision emphasised the importance of timely preparation and the need for applicants to provide compelling reasons for seeking an adjournment. The court found that the applicant had not met the required standard and dismissed the application. The court did not make any orders for costs but left the matter open for the parties to proceed with the hearing as scheduled.

Orders