Mohareb v Kelso (No 2)

[2021] NSWCA 182

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Mohareb v Kelso (No 2) [2021] NSWCA 182

Hearing dates:

On the papers

Date of orders:

20 August 2021

Decision date:

20 August 2021

Before:

Macfarlan JA at [1];
McCallum JA at [10]

Decision:

(1)    Reject the applications for the recusal of Macfarlan JA and McCallum JA.

(2)    Amend Order (1) made on 24 May 2021 by adding the words “in relation to Mr Mohareb’s claim against Mr Alexander Kelso” after the word “issues”.

(3)    Dismiss Mr Mohareb’s Amended Notice of Motion filed on 1 June 2021, with costs.

Catchwords:

JUDGMENTS AND ORDERS – amending, varying and setting aside – motion under UCPR r 36.16 to set aside previous judgment of Court – judgment granted leave to appeal limited to specific issues – whether grant of leave should be extended to allow applicant to appeal against entire decision including costs order made by Registrar and reviewed by primary judge – no good reason to permit appellate challenge to costs order – costs order appears to have been appropriate in the circumstances

COURTS AND JUDGES – bias – application for recusal – allegations of apprehended bias and actual bias against judges – applications rejected

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 36.17

Cases Cited:

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6

Brown Brothers Waste Contractors Pty Ltd v Pittwater Council (2015) 90 NSWLR 717; [2015] NSWCA 215

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Lawrence v Ciantar (No 2) [2020] NSWCA 186

Poulos v Commonwealth Bank of Australia Ltd (No 3) [2020] NSWCA 72

Lee v Cha [2008] NSWCA 13

Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170

Zepinic v Health Care Complaints Commission (No 2) [2020] NSWCA 320

Category:

Procedural rulings

Parties:

Mr Nader Mohareb (Applicant)
Mr Alexander Edward Kelso (First Respondent)
Mr John Alexander Kelso (Second Respondent)
Mr Roderick Gerrard Smith (Third Respondent)

Representation:

Counsel:
Self-represented (Applicant)
J Prowse (sol) (Second Respondent)
Self-represented (Third Respondent)

Solicitors:
MCW Lawyers (Second Respondent)

File Number(s):

2020/313168

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2020] NSWSC 1402

Date of Decision:

16 October 2020

Before:

Ierace J

File Number(s):

2020/174984

Judgment

1. MACFARLAN JA: By judgment of 24 May 2021 ([2021] NSWCA 103), the Court as presently constituted made the following orders:

“(1) Grant leave to Mr Mohareb to appeal in respect of the orders made by Ierace J on 16 October 2020, limited to the issues of whether Mr Mohareb’s notice of motion of 1 February 2018 should have been dismissed by the Registrar and whether Mr Mohareb’s Amended Summons filed on 13 August 2020 was taken to be dismissed by operation of the Vexatious Proceedings Act.

(2) Otherwise dismiss Mr Mohareb’s summons seeking leave to appeal.

(3) Order that Mr Mohareb’s and Mr Alexander Kelso’s costs…