Mohareb v Kelso (No 2)

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Mohareb v Kelso (No 2) [2017] NSWCA 173
Hearing dates:	On the papers
Decision date:	17 July 2017
Before:	Basten JA; Simpson JA
Decision:	(1)   Dismiss the notice of motion filed 26 May 2017.  (2)   No order as to the costs of the motion.
Catchwords:	PRACTICE AND PROCEDURE – application to vary orders – order made refusing leave to appeal – application to substitute a grant of leave to appeal –application in effect to reopen hearing – no change of circumstances – no misapprehension by court of applicant’s case   PRACTICE AND PROCEDURE – costs – application to vary costs order –unsuccessful applicant ordered to pay costs – no sufficient basis to vary order
Cases Cited:	Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246; [1981] HCA 20 Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44 Mohareb v Kelso [2017] NSWCA 98 TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333; [2002] NSWCA 82 Teoh v Hunter’s Hill Council (No 4) (2011) 81 NSWLR 771; [2011] NSWCA 324
Category:	Procedural and other rulings
Parties:	Nader Mohareb (Applicant) Alexander Edward Kelso (First Respondent) Saratoga Marine Pty Ltd (Second Respondent) John Alexander Kelso (Third Respondent) Leetec Pty Ltd (Fourth Respondent) Laurence Geoffrey Leeson (Fifth Respondent) Roderick Gerrard Smith (Sixth Respondent)
Representation:	Counsel: Applicant self-represented   Solicitors: Applicant self-represented
File Number(s):	2016/301624
Decision under appeal	Court or tribunal: District Court Jurisdiction: Civil Citation: [2016] NSWDC 208 Date of Decision: 12 September 2016 Before: Gibson DCJ File Number(s): 2015/201139; 2015/359339

Judgment

1. THE COURT: On 12 May 2017 the Court, as presently constituted, dismissed an application for leave to appeal from a judgment of Gibson DCJ in the District Court. That judgment had rejected an application by the applicant to amend his statement of claim, then (and still) pending in the District Court, in which he sought damages against the respondent, Alexander Kelso, in respect of alleged tortious conduct by Mr Kelso.

2. The proposed amendments sought to add fresh causes of action based on damage to the applicant’s property which had occurred after the commencement of the civil proceedings and responsibility for which the applicant sought to lay at the feet of the respondent. The application to amend also sought to join in the proceedings five additional parties who were said to be liable, either vicariously for the actions of the respondent, or directly for breach of their own duties owed to the applicant, but again based on the conduct of the respondent. In brief, the respondent was engaged (to use a neutral term) to operate a “Pink Water Taxi” on Pittwater, including trips between Church Point and Scotland Island, where the applicant lived.

3. For reasons set out in its earlier judgment,[1] the Court refused leave to appeal from the judgment in the District Court of 12 September 2016. The applicant was ordered to pay the respondent’s costs (and the costs…