Mhanna v Daoud - [2014] NSWCA 376

Court of Appeal

New South Wales

Case Title: Mhanna v Daoud

Medium Neutral Citation: [2014] NSWCA 376

Hearing Date(s): 30 October 2014

Decision Date: 30 October 2014

Before: Meagher JA; Barrett JA

Decision:
Summons for leave to 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 - leave to appeal - District Court cross-claim dismissed for failure to comply with directions - such failure undisputed - judge also referred to District Court's lack of jurisdiction - cross-claimant aware for several months of contention that court lacked jurisdiction - no attempt to obtain transfer to a competent court - cross-claim in any event academic following judgment on substantive claim and other cross claims - no prospects of success in appeal against discretionary decision on a matter of practice and procedure

Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth)
Civil Procedure Act 2005
Contracts Review Act 1980 (NSW)

Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; 148 CLR 170
Aon Risk Services Pty Ltd v Australian National University [2009] HCA 27; 239 CLR 175
Greywolf Resources NL v Wilkinson [2011] NSWSC 1604
House v R [1936] HCA 40; 55 CLR 499
Minogue v Williams [2000] FCA 366; 60 ALD 125
State of New South Wales v Mulcahy [2006] NSWCA 303
Zhu v Yingle Culture Exchange (Australia) Pty Ltd [2012] NSWSC 1305

Texts Cited: George Spencer Bower and K R Handley, Res Judicata, Chapter 6 (4th ed 2009, Lexis Nexis)

Category: Interlocutory applications

Parties: John Mhanna (Applicant)
Elias Daoud (First Respondent)
Andrew Joseph Hanna (Second Respondent)

Representation

- Counsel: Counsel:
Mr R K Newton (Applicant)
Mr D D Knoll (First Respondent)

- Solicitors: Solicitors:
Diaz & Diaz (Applicant)
Dib Lawyers (First Respondent)

File Number(s): 2014/148667

Decision Under Appeal

- Before: Curtis DCJ

- Date of Decision: 22 November 2013

- Court File Number(s): 2010/101370

JUDGMENT

THE COURT: On 30 October 2014, the Court heard and dismissed with costs an application for leave to appeal relating to an interlocutory order of the District Court dismissing before trial a third cross-claim filed in proceedings commenced by statement of claim on 22 April 2010.
The Court reserved its reasons and now publishes them.
It is necessary, at the outset, to describe the pleadings.
Daoud ("the respondent") sued one Hanna in debt in respect of $120,000 said to have been lent and to be due but unpaid. By his defence, Hanna admitted that the loan had been made but said that this had occurred in the context of a request by the respondent that he should apply…

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 Mhanna v Daoud

Details

AGLC: Mhanna v Daoud [2014] NSWCA 376
Case: [2014] NSWCA 376
Decision Date: 30 October 2014

CaseChat Overview and Summary

The appeal concerned a summons for leave to appeal from a decision of the District Court. The appellant, Mhanna, sought leave to appeal against the dismissal of a cross-claim that had been made against the respondent, Daoud. The dismissal of the cross-claim in the District Court was based on two grounds: firstly, Mhanna's failure to comply with court directions, and secondly, the District Court's lack of jurisdiction to hear the cross-claim.

The primary legal issues before the Court of Appeal were whether the District Court judge erred in dismissing the cross-claim for non-compliance with directions, and whether the judge erred in finding that the District Court lacked jurisdiction. The Court was also required to consider whether leave to appeal should be granted, given the circumstances.

Meagher and Barrett JJA dismissed the summons for leave to appeal with costs. Their Honours noted that the failure to comply with directions was undisputed. Furthermore, Mhanna had been aware for several months that the court's jurisdiction was being challenged and had made no attempt to seek a transfer of the proceedings to a competent court. Crucially, the cross-claim had become academic following the judgment on the substantive claim and other cross-claims. Consequently, the Court found that there were no prospects of success in an appeal against a discretionary decision concerning practice and procedure.

Orders

Orders of the court

Summons for leave to 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

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Case Title:	Mhanna v Daoud
Medium Neutral Citation:	[2014] NSWCA 376
Hearing Date(s):	30 October 2014
Decision Date:	30 October 2014
Before:	Meagher JA; Barrett JA
Decision:	Summons for leave to 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 - leave to appeal - District Court cross-claim dismissed for failure to comply with directions - such failure undisputed - judge also referred to District Court's lack of jurisdiction - cross-claimant aware for several months of contention that court lacked jurisdiction - no attempt to obtain transfer to a competent court - cross-claim in any event academic following judgment on substantive claim and other cross claims - no prospects of success in appeal against discretionary decision on a matter of practice and procedure
Legislation Cited:	Australian Securities and Investments Commission Act 2001 (Cth) Civil Procedure Act 2005 Contracts Review Act 1980 (NSW)
Cases Cited:	Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; 148 CLR 170 Aon Risk Services Pty Ltd v Australian National University [2009] HCA 27; 239 CLR 175 Greywolf Resources NL v Wilkinson [2011] NSWSC 1604 House v R [1936] HCA 40; 55 CLR 499 Minogue v Williams [2000] FCA 366; 60 ALD 125 State of New South Wales v Mulcahy [2006] NSWCA 303 Zhu v Yingle Culture Exchange (Australia) Pty Ltd [2012] NSWSC 1305
Texts Cited:	George Spencer Bower and K R Handley, Res Judicata, Chapter 6 (4th ed 2009, Lexis Nexis)
Category:	Interlocutory applications
Parties:	John Mhanna (Applicant) Elias Daoud (First Respondent) Andrew Joseph Hanna (Second Respondent)
Representation
- Counsel:	Counsel: Mr R K Newton (Applicant) Mr D D Knoll (First Respondent)
- Solicitors:	Solicitors: Diaz & Diaz (Applicant) Dib Lawyers (First Respondent)
File Number(s):	2014/148667
Decision Under Appeal
- Before:	Curtis DCJ
- Date of Decision:	22 November 2013
- Court File Number(s):	2010/101370