Mohareb v Kelso (No 4)

[2018] NSWCA 292

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Mohareb v Kelso (No 4) [2018] NSWCA 292
Hearing dates:	On the papers
Date of orders:	29 November 2018
Decision date:	29 November 2018
Before:	Beazley P; Macfarlan JA
Decision:	Notice of Motion dismissed with costs.
Catchwords:	APPEAL – application that Court of Appeal set aside or alternatively “suspend” previous orders – no issue of principle – application dismissed
Legislation Cited:	Supreme Court Act 1970 (NSW), s 75A(7)-(8)
Cases Cited:	Mohareb v Kelso (No 3) [2018] NSWCA 250
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

1. THE COURT: By Notice of Motion filed on 31 October 2018, Mr Mohareb seeks orders that this Court set aside or alternatively “suspend” its orders of 29 October 2018. On the latter date, the Court dismissed Mr Mohareb’s application for leave to appeal against a decision of Curtis ADCJ of 27 September 2018 (Mohareb v Kelso (No 3) [2018] NSWCA 250). By that decision, his Honour refused to adjourn District Court proceedings fixed for hearing on 29 October 2018 and also dismissed Mr Mohareb’s motion for a stay of those proceedings pending determination of his Summons for Leave to Appeal to this Court.

2. At the hearing before this Court at 9.15am on 29 October 2018, Mr Mohareb sought to tender documents, which he has described on the present application as “belatedly received medical & psychological evidence”. This Court rejected the tender because it was not relevant to the application for leave to appeal before the Court. Moreover, the material was not before Curtis ADCJ on 27 September 2018 (indeed most of it post-dated that date) and Mr Mohareb did not show that there was any arguable basis for this Court admitting the evidence as further or fresh evidence pursuant to s 75A(7) or (8) of the Supreme Court Act 1970 (NSW). Whilst the material might have been relevant to Mr Mohareb’s motion for a stay of Curtis ADCJ’s judgment pending determination of the application for leave to appeal to this Court, that motion did not become relevant because the Court dismissed the application for leave on 29 October. The motion for a stay was also dismissed as it was no longer relevant, the Court of Appeal proceedings having terminated.

3. After the hearing in this Court and its delivery of judgment on the morning of 29 October, Mr Mohareb applied to the District Court for an adjournment of the hearing fixed to commence in that Court on the same day. His application was refused and his proceedings were summarily dismissed.

4. Mr Mohareb’s present application to have this Court’s orders of 29 October set aside or “suspended” should be dismissed as he has not shown any arguable basis for the making of such an order. This Court did not err in rejecting Mr Mohareb’s tender on that day of his so-called “belatedly received medical & psychological evidence”.

5. Furthermore, Mr Mohareb contends in his written submissions that this Court should set aside or vary the orders made by the District Court on 29 October, after the hearing in and judgment of this Court. However, he has not demonstrated any arguable basis for this Court doing so. Moreover, there has been no application for leave to appeal from the District Court orders. The present proceedings are not concerned with them but, instead, with those that Curtis ADCJ made on 27 September 2018.

6. For these reasons, Mr Mohareb’s Notice of Motion filed on 31 October 2018 is dismissed with costs.

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Decision last updated: 29 November 2018