Muriniti v King - [2019] NSWCA 153

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Muriniti v King [2019] NSWCA 153
Hearing dates: 30 April 2019
Date of orders: 27 June 2019
Decision date: 27 June 2019
Before: Gleeson JA at [1];
Emmett AJA at [2]
Decision:
1. Summons seeking leave to appeal filed on 24 December 2018 be dismissed.
2. The Respondents’ costs of the application for leave be paid by the applicants for leave.

Catchwords:
APPEAL – leave to appeal from costs orders made by the Land and Environment Court – whether leave should be granted under s 58 of the Land and Environment Court Act 1979 (NSW).
APPEAL - whether the primary judge applied the correct test for the making of an order under s 99 of the Civil Procedure Act 2005 (NSW) – whether the primary judge based his conclusions on findings that were not open on the evidence – whether there was bias on the part of the primary judge – whether there was a denial of procedural fairness – whether the primary judge erred in considering that he had previously made a relevant finding that there was no evidence of conspiracy.
Legislation Cited: Civil Procedure Act 2005 (NSW)
Land and Environment Court Act 1979 (NSW)
Supreme Court Act 1970 (NSW)
Cases Cited: Flinn v Flinn (1999) VSCA 134
Kendirjian v Ayoub [2008] NSWCA 194
King v Muriniti [2018] NSWCA 98
Mitry Lawyers v Barnden [2014] FCA 918
Re Felicity: FM v Secretary, Department of Family and Community Services (No 4) [2015] NSWCA 19
Ridehalgh v Horsefield & Anor [1994] Ch 205
White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169
Young v King [2004] NSWLEC 93
Young v King [2016] NSWCA 282
Young v King (No. 2) [2009] NSWLEC 125
Young v King (No 6) [2015] NSWLEC 111
Young v King (No 9) [2016] NSWLEC 4
Young v King (No 12) [2017] NSWLEC 150
Young v King (No 13) [2018] NSWLEC 150
Category: Procedural and other rulings
Parties: Leonardo Carlo Muriniti (First Applicant)
Robert Duane Newell (Second Applicant)
Brendan King (First Opponent)
Kristina King (Second Opponent)
Representation:
Counsel:
R D Newell, Solicitor (Applicants)
M Wright SC (Opponents)
Solicitors:
L C Muriniti & Associates (Applicants)
Terrence Stern Solicitor & Attorney (Opponents)

File Number(s): 2018/309605
Decision under appeal

Court or tribunal:

Land and Environment Court

Jurisdiction:

Class 4

Citation:

[2018] NSWLEC 150

Date of Decision:

26 September 2018

Before:

Sheahan J

File Number(s):

2016/160767 and 2016/160933

Judgment

GLEESON JA: I agree with Emmett AJA.
EMMETT JA:

Introduction

By summons filed on 24 December 2018, the applicants, Mr Leonardo Muriniti and Mr Robert Newell (together the Lawyers), seek leave to appeal from costs orders made by the Land and Environment Court (the L&E Court) on 26 September 2018 (the Impugned Costs Orders )[1] . Leave is required by reason of the operation of s 58 of the Land and Environment Court Act 1979 (NSW). Under s 58(1), where a party to proceedings…

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.

Continue reading Muriniti v King

Details

AGLC: Muriniti v King [2019] NSWCA 153
Case: [2019] NSWCA 153
Decision Date: 27 June 2019

CaseChat Overview and Summary

The applicants sought leave to appeal from costs orders made by the Land and Environment Court. The primary dispute concerned whether the primary judge had applied the correct legal test when making orders under section 99 of the *Civil Procedure Act 2005* (NSW). The applicants also raised concerns about whether the primary judge's conclusions were based on findings unsupported by the evidence, allegations of judicial bias, and a denial of procedural fairness. Furthermore, the applicants contended that the primary judge erred in considering that a relevant finding of no evidence of conspiracy had previously been made.

The court was required to determine whether to grant leave to appeal under section 58 of the *Land and Environment Court Act 1979* (NSW). This involved assessing whether the grounds of appeal raised arguable issues of law or fact that warranted further consideration. Specifically, the court had to examine the application of section 99 of the *Civil Procedure Act 2005* (NSW), the evidentiary basis for the primary judge's findings, and whether the proceedings met the standards of procedural fairness and impartiality.

The court dismissed the summons seeking leave to appeal. The applicants were ordered to pay the respondents' costs of the application for leave to appeal.

Orders

Orders of the court

1. Summons seeking leave to appeal filed on 24 December 2018 be dismissed.

2. The Respondents’ costs of the application for leave be paid by the applicants for leave.

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Muriniti v King [2019] NSWCA 153
Hearing dates:	30 April 2019
Date of orders:	27 June 2019
Decision date:	27 June 2019
Before:	Gleeson JA at [1]; Emmett AJA at [2]
Decision:	1. Summons seeking leave to appeal filed on 24 December 2018 be dismissed. 2. The Respondents’ costs of the application for leave be paid by the applicants for leave.
Catchwords:	APPEAL – leave to appeal from costs orders made by the Land and Environment Court – whether leave should be granted under s 58 of the Land and Environment Court Act 1979 (NSW). APPEAL - whether the primary judge applied the correct test for the making of an order under s 99 of the Civil Procedure Act 2005 (NSW) – whether the primary judge based his conclusions on findings that were not open on the evidence – whether there was bias on the part of the primary judge – whether there was a denial of procedural fairness – whether the primary judge erred in considering that he had previously made a relevant finding that there was no evidence of conspiracy.
Legislation Cited:	Civil Procedure Act 2005 (NSW) Land and Environment Court Act 1979 (NSW) Supreme Court Act 1970 (NSW)
Cases Cited:	Flinn v Flinn (1999) VSCA 134 Kendirjian v Ayoub [2008] NSWCA 194 King v Muriniti [2018] NSWCA 98 Mitry Lawyers v Barnden [2014] FCA 918 Re Felicity: FM v Secretary, Department of Family and Community Services (No 4) [2015] NSWCA 19 Ridehalgh v Horsefield & Anor [1994] Ch 205 White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169 Young v King [2004] NSWLEC 93 Young v King [2016] NSWCA 282 Young v King (No. 2) [2009] NSWLEC 125 Young v King (No 6) [2015] NSWLEC 111 Young v King (No 9) [2016] NSWLEC 4 Young v King (No 12) [2017] NSWLEC 150 Young v King (No 13) [2018] NSWLEC 150
Category:	Procedural and other rulings
Parties:	Leonardo Carlo Muriniti (First Applicant) Robert Duane Newell (Second Applicant) Brendan King (First Opponent) Kristina King (Second Opponent)
Representation:	Counsel: R D Newell, Solicitor (Applicants) M Wright SC (Opponents) Solicitors: L C Muriniti & Associates (Applicants) Terrence Stern Solicitor & Attorney (Opponents)
File Number(s):	2018/309605
Decision under appeal	Court or tribunal: Land and Environment Court Jurisdiction: Class 4 Citation: [2018] NSWLEC 150 Date of Decision: 26 September 2018 Before: Sheahan J File Number(s): 2016/160767 and 2016/160933