Mohareb v Kelso - [2018] NSWCA 164

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Mohareb v Kelso [2018] NSWCA 164
Hearing dates: 20 July 2018
Decision date: 30 July 2018
Before: Basten JA, Sackville AJA
Decision:
(1)   Grant the applicant an extension of time within which to seek review of the order of the Registrar of 19 February 2018 declining to remit the application for leave to appeal to the Common Law Division.

(2)   Dismiss the application to review the decision of the Registrar.

(3)   Otherwise dismiss the applicant’s notice of motion dated 18 April 2018.

(4)   Dismiss the summons filed 28 November 2017 seeking leave to appeal from the following orders of the Judicial Registrar of the District Court:
(a)   order (3) made on 8 September 2017 in matter 2015/201139; and
(b)   orders (1)-(4) made on 6 November 2017 in matter 2016/292950.
Catchwords:
CIVIL PROCEDURE – application for leave to appeal decision of Judicial Registrar of District Court – proceeding assigned to Common Law Division review – application filed in Court of Appeal – refusal to remit – whether registrar erred – whether further evidence filed by applicant in Court of Appeal supported remittal – whether application for leave to appeal lacked merit

CIVIL PROCEDURE – consolidation of proceedings –decision of Judicial Registrar not to consolidate proceedings – proceedings involving separate incidents, defendants and causes of action – whether Court should grant leave to appeal
CIVIL PROCEDURE – refusal to enter default judgment – defendant represented, parties had been in discussions, matter on inactive list pending determination of leave application in another matter –whether decision attended by bias – whether Court should grant leave to appeal
Legislation Cited:
Defamation Act 2005 (NSW), s 14; Pt 3
District Court Act 1973 (NSW), s 127
Supreme Court Act 1970 (NSW), ss 48, 51
Uniform Civil Procedure Rules 2005 (NSW), rr 49.19, 49.20, 51.59
Cases Cited: Attorney General (NSW) v Mohareb [2016] NSWSC 1823
In Re the Will of F B Gilbert (Deceased) (1946) 46 SR(NSW) 318
Mohareb v Kelso [2016] NSWDC 208
Mohareb v Kelso [2017] NSWCA 98
Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369
Category: Principal judgment
Parties: Nader Mohareb (Applicant)
Alexander Edward Kelso (First Respondent)
John Alexander Kelso (Second Respondent)
Saratoga Marine Pty Ltd (Third Respondent)
Laurence Leeson (Fourth Respondent)
Leetec Pty Ltd (Fifth Respondent)
Roderick Gerrard Smith (Sixth Respondent)
Taylor Booth (Seventh Respondent)
Representation: Applicant self-represented
Sixth Respondent self-represented
No appearances by First to Fifth and Seventh Respondents

File Number(s): 2017/301930
Decision under appeal

Court or tribunal:

Court of Appeal; District Court

Date of Decision:

19 February 2018; 8 September 2017; 6 November 2017

Before:

Registrar Riznyczok; Judicial Registrar Howard

File Number(s):

2017/301930; 2015/201139; 2016/292950

Decision under review

Judgment

THE COURT: The applicant, Nader Mohareb, has a number of civil proceedings pending in the District Court. None of the proceedings has yet come to trial; the matter presently before this Court concerns an application for leave to appeal from two sets of orders made…

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 Mohareb v Kelso

Details

AGLC: Mohareb v Kelso [2018] NSWCA 164
Case: [2018] NSWCA 164
Decision Date: 30 July 2018

CaseChat Overview and Summary

Mohareb (the applicant) sought leave to appeal from certain orders of a Judicial Registrar of the District Court, and also sought review of a decision by a Registrar of the Court of Appeal. The dispute involved the Registrar's refusal to consolidate proceedings, refusal to enter default judgment, and a refusal to remit the application for leave to appeal to the Common Law Division. The application for leave to appeal was heard by Basten JA and Sackville AJA in the Court of Appeal.

The Court of Appeal was required to determine whether the Judicial Registrar erred in refusing to consolidate the proceedings, given they involved separate incidents, defendants, and causes of action. It also had to consider whether the Registrar's refusal to enter default judgment was attended by bias, particularly in circumstances where the defendant was represented and parties had been in discussions. Finally, the Court had to assess whether the Registrar erred in declining to remit the application for leave to appeal to the Common Law Division, and whether further evidence filed by the applicant in the Court of Appeal supported such a remittal.

The Court found that the Judicial Registrar did not err in refusing to consolidate the proceedings, as they were distinct. The refusal to enter default judgment was also upheld, with the Court noting the ongoing discussions between the parties and the matter being on an inactive list. Regarding the remittal application, the Court granted the applicant an extension of time to seek review of the Registrar's decision not to remit, but ultimately dismissed the review application. The Court concluded that the application for leave to appeal lacked merit.

The Court of Appeal ordered that the applicant be granted an extension of time to seek review of the order declining to remit the application for leave to appeal. However, the application to review that decision was dismissed. The applicant's notice of motion and summons seeking leave to appeal from the Judicial Registrar's orders were also dismissed.

Orders

Orders of the court

(1) Grant the applicant an extension of time within which to seek review of the order of the Registrar of 19 February 2018 declining to remit the application for leave to appeal to the Common Law Division.

(2) Dismiss the application to review the decision of the Registrar.

(3) Otherwise dismiss the applicant’s notice of motion dated 18 April 2018.

(4) Dismiss the summons filed 28 November 2017 seeking leave to appeal from the following orders of the Judicial Registrar of the District Court:

(a) order (3) made on 8 September 2017 in matter 2015/201139; and

(b) orders (1)-(4) made on 6 November 2017 in matter 2016/292950.

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Mohareb v Kelso [2018] NSWCA 164
Hearing dates:	20 July 2018
Decision date:	30 July 2018
Before:	Basten JA, Sackville AJA
Decision:	(1) Grant the applicant an extension of time within which to seek review of the order of the Registrar of 19 February 2018 declining to remit the application for leave to appeal to the Common Law Division. (2) Dismiss the application to review the decision of the Registrar. (3) Otherwise dismiss the applicant’s notice of motion dated 18 April 2018. (4) Dismiss the summons filed 28 November 2017 seeking leave to appeal from the following orders of the Judicial Registrar of the District Court: (a) order (3) made on 8 September 2017 in matter 2015/201139; and (b) orders (1)-(4) made on 6 November 2017 in matter 2016/292950.
Catchwords:	CIVIL PROCEDURE – application for leave to appeal decision of Judicial Registrar of District Court – proceeding assigned to Common Law Division review – application filed in Court of Appeal – refusal to remit – whether registrar erred – whether further evidence filed by applicant in Court of Appeal supported remittal – whether application for leave to appeal lacked merit CIVIL PROCEDURE – consolidation of proceedings –decision of Judicial Registrar not to consolidate proceedings – proceedings involving separate incidents, defendants and causes of action – whether Court should grant leave to appeal CIVIL PROCEDURE – refusal to enter default judgment – defendant represented, parties had been in discussions, matter on inactive list pending determination of leave application in another matter –whether decision attended by bias – whether Court should grant leave to appeal
Legislation Cited:	Defamation Act 2005 (NSW), s 14; Pt 3 District Court Act 1973 (NSW), s 127 Supreme Court Act 1970 (NSW), ss 48, 51 Uniform Civil Procedure Rules 2005 (NSW), rr 49.19, 49.20, 51.59
Cases Cited:	Attorney General (NSW) v Mohareb [2016] NSWSC 1823 In Re the Will of F B Gilbert (Deceased) (1946) 46 SR(NSW) 318 Mohareb v Kelso [2016] NSWDC 208 Mohareb v Kelso [2017] NSWCA 98 Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369
Category:	Principal judgment
Parties:	Nader Mohareb (Applicant) Alexander Edward Kelso (First Respondent) John Alexander Kelso (Second Respondent) Saratoga Marine Pty Ltd (Third Respondent) Laurence Leeson (Fourth Respondent) Leetec Pty Ltd (Fifth Respondent) Roderick Gerrard Smith (Sixth Respondent) Taylor Booth (Seventh Respondent)
Representation:	Applicant self-represented Sixth Respondent self-represented No appearances by First to Fifth and Seventh Respondents
File Number(s):	2017/301930
Decision under appeal	Court or tribunal: Court of Appeal; District Court Date of Decision: 19 February 2018; 8 September 2017; 6 November 2017 Before: Registrar Riznyczok; Judicial Registrar Howard File Number(s): 2017/301930; 2015/201139; 2016/292950