Moskios v Splendid Developments Pty Ltd; Bishay v Moskios - [2011] NSWCA 210

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Moskios v Splendid Developments Pty Ltd; Bishay v Moskios [2011] NSWCA 210
Hearing dates: 25 July 2011
Decision date: 25 July 2011
Before: Campbell JA at [1], [29], [37]
Macfarlan JA at [27], [35]
Whealy JA at [28], [36]
Decision:
(1) The summons seeking leave to appeal, that Mr Bishay brings concerning the decision of her Honour Judge Gibb, is dismissed with costs.
(2) Mr Bishay and Splendid Developments ordered to pay the costs of the application brought by Mr Moskios, and it is noted that Mr Moskios' application is discontinued.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
APPEAL - Leave to appeal - interlocutory judgments and orders - relevance of matter decided in interlocutory judgment continuing to be open to challenge on appeal from final decision - where reversal of an interlocutory decision would not avoid a first trial, or require a second trial - insufficient prospects of success on appeal to justify the grant of leave - whether primary judge erred in granting leave to amend Statement of Claim - whether primary judge erred in granting leave to withdraw admissions - whether orders entered were materially different to those pronounced in open Court - relevance of s 56 Civil Procedure Act 2005 to applications for leave to appeal
COSTS - costs of application where leave to appeal against one judgment not granted and application for leave to appeal against a different judgment only pressed if leave to appeal against the first judgment were granted - where issues involved in both applications thoroughly enmeshed - where second application purely defensive
Legislation Cited: Civil Procedure Act 2005
Fair Trading Act 1987
Trade Practices Act 1975 (Cth)
Cases Cited: Gerlach v Clifton Bricks (2002) 279 CLR 478
House v The King (1936) 55 CLR 499
In the Will of Gilbert (1946) 46 SR (NSW) 318
Kessy v Golledge [1999] NSWCA 424
Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274
Oldfields Pty Ltd v Alfar [1996] 70 ALJR 560
Tamworth Base Hospital v Durant [2000] NSWCA 209
Category: Principal judgment
Parties: Terry Moskios
Reda Bishay
Splendid Developments Pty Ltd
Representation: Counsel
JM White (for Terry Moskios)
JS Drummond (for Reda Bishay & Splendid Developments Pty Ltd)
Solicitors
Sarvaas Ciappara (for Terry Moskios)
Prime Lawyers (for Reda Bishay & Splendid Developments Pty Ltd)

File Number(s): 2008/317505
Decision under appeal

Jurisdiction:

9101

Before:

Judicial Registrar McDonald and
Gibb DCJ

File Number(s):

2008/317505

Judgment - eX TEMPORE

CAMPBELL JA : Splendid Development Pty Ltd is a company of which Mr Bishay is the sole director, member and secretary. Mr Moskios…

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: [2011] NSWCA 210
Decision Date: 25 July 2011

CaseChat Overview and Summary

This matter concerned an application for leave to appeal from interlocutory judgments and orders made in the District Court of New South Wales. The primary dispute involved claims between Mr Moskios and Splendid Developments Pty Ltd, with Mr Bishay also a party. The applications for leave to appeal related to decisions made by a primary judge concerning amendments to a Statement of Claim, the withdrawal of admissions, and the form of orders pronounced.

The Court of Appeal was required to determine whether leave to appeal should be granted in relation to these interlocutory decisions. Specifically, the court considered whether the issues decided in the interlocutory judgments remained open to challenge on appeal from a final decision, and whether the reversal of an interlocutory decision would avoid a trial or necessitate a second trial. The court also had to assess the prospects of success on appeal and the relevance of s 56 of the *Civil Procedure Act 2005* to applications for leave to appeal. Furthermore, the court considered the costs of the applications, particularly where one application was discontinued and another was only pressed conditionally.

The Court of Appeal found that there were insufficient prospects of success on appeal to justify the grant of leave. The court reasoned that the issues raised by the applications for leave to appeal were not of such a nature that their reversal would avoid a trial or require a second trial. The court also considered the specific circumstances of the applications, including the interconnectedness of the issues and the defensive nature of one of the applications, in determining the appropriate costs orders.

The summons seeking leave to appeal brought by Mr Bishay concerning the decision of Judge Gibb was dismissed with costs. Mr Bishay and Splendid Developments were ordered to pay the costs of the application brought by Mr Moskios, which was discontinued.

Orders

Orders of the court

(1) The summons seeking leave to appeal, that Mr Bishay brings concerning the decision of her Honour Judge Gibb, is dismissed with costs.

(2) Mr Bishay and Splendid Developments ordered to pay the costs of the application brought by Mr Moskios, and it is noted that Mr Moskios' application is discontinued.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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:	Moskios v Splendid Developments Pty Ltd; Bishay v Moskios [2011] NSWCA 210
Hearing dates:	25 July 2011
Decision date:	25 July 2011
Before:	Campbell JA at [1], [29], [37] Macfarlan JA at [27], [35] Whealy JA at [28], [36]
Decision:	(1) The summons seeking leave to appeal, that Mr Bishay brings concerning the decision of her Honour Judge Gibb, is dismissed with costs. (2) Mr Bishay and Splendid Developments ordered to pay the costs of the application brought by Mr Moskios, and it is noted that Mr Moskios' application is discontinued. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	APPEAL - Leave to appeal - interlocutory judgments and orders - relevance of matter decided in interlocutory judgment continuing to be open to challenge on appeal from final decision - where reversal of an interlocutory decision would not avoid a first trial, or require a second trial - insufficient prospects of success on appeal to justify the grant of leave - whether primary judge erred in granting leave to amend Statement of Claim - whether primary judge erred in granting leave to withdraw admissions - whether orders entered were materially different to those pronounced in open Court - relevance of s 56 Civil Procedure Act 2005 to applications for leave to appeal COSTS - costs of application where leave to appeal against one judgment not granted and application for leave to appeal against a different judgment only pressed if leave to appeal against the first judgment were granted - where issues involved in both applications thoroughly enmeshed - where second application purely defensive
Legislation Cited:	Civil Procedure Act 2005 Fair Trading Act 1987 Trade Practices Act 1975 (Cth)
Cases Cited:	Gerlach v Clifton Bricks (2002) 279 CLR 478 House v The King (1936) 55 CLR 499 In the Will of Gilbert (1946) 46 SR (NSW) 318 Kessy v Golledge [1999] NSWCA 424 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Oldfields Pty Ltd v Alfar [1996] 70 ALJR 560 Tamworth Base Hospital v Durant [2000] NSWCA 209
Category:	Principal judgment
Parties:	Terry Moskios Reda Bishay Splendid Developments Pty Ltd
Representation:	Counsel JM White (for Terry Moskios) JS Drummond (for Reda Bishay & Splendid Developments Pty Ltd) Solicitors Sarvaas Ciappara (for Terry Moskios) Prime Lawyers (for Reda Bishay & Splendid Developments Pty Ltd)
File Number(s):	2008/317505
Decision under appeal	Jurisdiction: 9101 Before: Judicial Registrar McDonald and Gibb DCJ File Number(s): 2008/317505