Mohareb v Kelso (No 3) - [2018] NSWCA 250

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Mohareb v Kelso (No 3) [2018] NSWCA 250
Hearing dates: 29 October 2018
Date of orders: 29 October 2018
Decision date: 29 October 2018
Before: Beazley P;
Macfarlan JA
Decision:
Summons for leave to appeal and motion for stay dismissed with costs.

Catchwords: APPEAL – leave to appeal against interlocutory decision refusing to adjourn proceedings – no issue of principle
Cases Cited: House v The King (1936) 55 CLR 499; [1936] HCA 40
In Re the Will of Gilbert (deceased) (1946) 46 SR (NSW) 318
Mohareb v Kelso [2017] NSWCA 98
Mohareb v Kelso [2018] NSWCA 164
Mohareb v Kelso (No 2) [2018] NSWCA 246
Category: Procedural and other rulings
Parties: Nader Mohareb (Applicant)
Alexander Edward Kelso (First Respondent)
John Alexander Kelso (Second Respondent)
Saratoga Marine Ltd (Third Respondent)
Laurence Geoffrey Leeson (Fourth Respondent)
Leetec Pty Limited (Fifth Respondent)
Roderick Gerrard Smith (Sixth Respondent)
Taylor Booth (Seventh Respondent)
Representation:
Counsel:
Applicant self-represented
First Respondent self-represented
Sixth Respondent self-represented
Solicitors:
Applicant self-represented
First Respondent self-represented
Sixth Respondent self-represented

File Number(s): CA 2018/322640
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Civil

Date of Decision:

27 September 2018

Before:

Curtis ADCJ

File Number(s):

DC 2015/201139; 2015/359339; 2016/292950; 2017/227427; 2017/227359

Judgment

THE COURT: This is a summons seeking leave to appeal against an interlocutory decision of Curtis ADCJ of 27 September 2018 refusing to adjourn the hearing of certain proceedings that his Honour fixed on that day for hearing on 29 October 2018, being today.
Mr Mohareb, who is the applicant, did not file his Court of Appeal summons seeking leave to appeal until 22 October 2018 and did not file his motion for a stay of the District Court actions until last Friday afternoon, that is, 26 October 2018.
On the filing of that notice of motion, this Court accommodated Mr Mohareb by fixing his leave and, if relevant stay, application for hearing at 9.15am today. Due however to the imminence of the scheduled District Court hearing (to commence at 10am today) and the lateness of Mr Mohareb’s application, for which he has provided no satisfactory explanation, this Court has had to hear and determine the applications before it on an urgent basis.
The nature of and background to the District Court actions are described in the decisions of this Court in Mohareb v Kelso of 12 May 2017 ([2017] NSWCA 98) and 13 July 2018 ([2018] NSWCA 164). By the latter decision, this Court refused to grant Mr Mohareb leave to appeal against a decision of a District Court Judicial Registrar not to consolidate various District Court actions commenced by Mr Mohareb.
Subsequently, on 19 September 2018, Letherbarrow DCJ referred the various District Court actions to Curtis ADCJ for “consolidated management”. Mr Mohareb submitted to Curtis ADCJ on 27 September 2018 that Letherbarrow DCJ had gone further and had decided that the actions should actually be heard together, as distinct from being managed together.…

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.

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Details

Case: [2018] NSWCA 250
Decision Date: 29 October 2018

CaseChat Overview and Summary

Mohareb (the applicant) sought leave to appeal against an interlocutory decision of the primary judge that refused to grant an adjournment of proceedings. Kelso (the respondent) was the other party to the proceedings. The appeal concerned the refusal of an adjournment, and the court was asked to consider whether leave to appeal should be granted.

The central legal issue before the Court of Appeal was whether the primary judge erred in refusing to grant an adjournment of the proceedings. This involved determining whether there was a sufficient basis to grant leave to appeal against an interlocutory decision, particularly where the applicant contended that the refusal of the adjournment would cause prejudice.

Beazley P and Macfarlan JA dismissed the summons for leave to appeal. Their Honours noted that leave to appeal against an interlocutory decision is generally only granted where there is an issue of principle or where the decision is attended by a real risk of injustice. In this instance, the court found that no such issue of principle arose and that the refusal of the adjournment did not present a compelling case for leave to appeal. The motion for a stay of proceedings was also dismissed. The applicant was ordered to pay the respondent's costs.

Orders

Orders of the court

Summons for leave to appeal and motion for stay dismissed with costs.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Mohareb v Kelso (No 3) [2018] NSWCA 250
Hearing dates:	29 October 2018
Date of orders:	29 October 2018
Decision date:	29 October 2018
Before:	Beazley P; Macfarlan JA
Decision:	Summons for leave to appeal and motion for stay dismissed with costs.
Catchwords:	APPEAL – leave to appeal against interlocutory decision refusing to adjourn proceedings – no issue of principle
Cases Cited:	House v The King (1936) 55 CLR 499; [1936] HCA 40 In Re the Will of Gilbert (deceased) (1946) 46 SR (NSW) 318 Mohareb v Kelso [2017] NSWCA 98 Mohareb v Kelso [2018] NSWCA 164 Mohareb v Kelso (No 2) [2018] NSWCA 246
Category:	Procedural and other rulings
Parties:	Nader Mohareb (Applicant) Alexander Edward Kelso (First Respondent) John Alexander Kelso (Second Respondent) Saratoga Marine Ltd (Third Respondent) Laurence Geoffrey Leeson (Fourth Respondent) Leetec Pty Limited (Fifth Respondent) Roderick Gerrard Smith (Sixth Respondent) Taylor Booth (Seventh Respondent)
Representation:	Counsel: Applicant self-represented First Respondent self-represented Sixth Respondent self-represented Solicitors: Applicant self-represented First Respondent self-represented Sixth Respondent self-represented
File Number(s):	CA 2018/322640
Decision under appeal	Court or tribunal: District Court Jurisdiction: Civil Date of Decision: 27 September 2018 Before: Curtis ADCJ File Number(s): DC 2015/201139; 2015/359339; 2016/292950; 2017/227427; 2017/227359