Saad v Kassis - [2007] NSWSC 1457

CITATION: Saad v Kassis [2007] NSWSC 1457

HEARING DATE(S): 30 November 2007

JUDGMENT DATE :
14 December 2007

JURISDICTION: Common Law Administrative Law List

JUDGMENT OF: Associate Justice Harrison

DECISION: (1) The appeal is upheld; (2) The decision of Senior Tribunal Member Durie dated 12 July 2007 is set aside; (3) The matter is remitted to the Tribunal to be determined according to law; (4) The defendant is to pay the plaintiff's costs of the appeal. However, the plaintiff should pay the defendant's costs thrown away in the Tribunal on 12 and 13 July 2007. The defendant is to have a certificate under the Suitors' Fund Act if applicable.

CATCHWORDS: APPEAL - CTTT - refusal of adjournment

LEGISLATION CITED: Consumer Trader and Tenancy Tribunal Act 2001

CASES CITED: Chapman v Taylor & Ors; Vero Insurance Ltd v Taylor & Ors [2004] NSWCA 456
Duncan v Cliftonville Estates Pty Limited [2001] NSWSC 968; (2001) 10 BPR 19,127; (2002) NSWConvR 56-006
Italiano v Carbone [2005] NSWCA 177
Kalokerinos & Anor v HIA Insurance Services Pty Ltd & Anor [2004] NSWCA 312
Maconachie v Kullenberg [2005} NSWCA 294
Makita v Sprowles [2001] NSWSC 305
Menzie v CRCI Pty Ltd [2007] NSWCA 118
Sali v SPC Ltd (1993) 116 ALR 625
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Thomas v Nedeljkovic [2004] NSWSC 524

PARTIES: Paul Saad (Plaintiff)
Sam Kassis (Defendant)

FILE NUMBER(S): SC 30085/07

COUNSEL: Mr CC Dwyer (Plaintiff)
Mr T Davie (Defendant)

SOLICITORS: Johnston Vaughan Solicitors (Plaintiff)
Peter Merity (Defendant)

LOWER COURT JURISDICTION: Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT FILE NUMBER(S): HB 06/55798

LOWER COURT JUDICIAL OFFICER : Senior Tribunal Member Durie

LOWER COURT DATE OF DECISION: 12 July 2007

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

ASSOCIATE JUSTICE HARRISON

FRIDAY, 14 DECEMBER 2007

30085/2007 - PAUL SAAD v SAM KASSIS
JUDGMENT (Appeal - refusal of adjournment– CTTT)

1 HER HONOUR: By summons filed 10 August 2007 the plaintiff seeks a declaration that he was denied natural justice, firstly, in respect of the hearing of his adjournment applications on 12 July 2007 before the Consumer, Trader and Tenancy Tribunal (“CTTT”) and that such decision should be set aside; secondly, in respect of the costs order made following refusal of the adjournment and amendment applications in that he was not informed by the CTTT that it was going to proceed to order an amount for costs affording the plaintiff an opportunity to make submissions on the amount of those costs or exercise his right to have such costs assessed. The plaintiff seeks an order that the application filed 7 November 2006 in the CTTT be remitted for determination on the merits.

2 The plaintiff is Paul Saad (Mr Saad). The defendant is Sam Kassis (Mr Kassis). Mr Saad relied upon his own affidavit filed 10 August 2007. Mr Kassis relied upon the affidavits of Michelle Joanne Sultana filed on 1 November 2007 and 15 November…

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 Saad v Kassis

Details

AGLC: Saad v Kassis [2007] NSWSC 1457
Case: [2007] NSWSC 1457
Decision Date: 14 December 2007

CaseChat Overview and Summary

In the case of Saad v Kassis, the applicants, Saad and his wife, sought leave to appeal against a decision of the Chief Magistrate of the Children's Court of New South Wales to refuse them an adjournment of a hearing concerning their application for the return of their children. The respondents were the children's maternal grandparents and the maternal aunt of the children, who had applied for and been granted custody of the children. The applicants sought leave to appeal from the Supreme Court of New South Wales.

The central legal issue before the court was whether the refusal of the adjournment was an appealable decision and, if so, whether it was a decision that ought to be reviewed for error of law or error in principle. The applicants argued that the decision was appealable and that it ought to be reviewed for error of law or error in principle. The respondents contended that the refusal of the adjournment was not an appealable decision, or if it was, that it should only be reviewed for jurisdictional error.

The court held that the refusal of the adjournment was an appealable decision and that it should be reviewed for error in principle. The court found that the Chief Magistrate had given insufficient weight to the applicants' interests in the children and had failed to consider relevant evidence. The court also found that the respondents' contention that the decision should only be reviewed for jurisdictional error was incorrect. The court held that the refusal of the adjournment was a decision that involved the exercise of a discretion and that it ought to be reviewed for error in principle.

The court granted the applicants leave to appeal and set aside the decision of the Chief Magistrate. The court ordered that the hearing be adjourned to a later date and that the children be returned to the applicants in the interim.

Orders