Sarina v Mackay

[2021] NSWCA 306

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Sarina v Mackay [2021] NSWCA 306

Hearing dates:

8 December 2021

Decision date:

14 December 2021

Before:

Gleeson JA at [1];
Leeming JA at [2];
Sackar J at [42].

Decision:

1. Notice of appeal filed 19 October 2021 dismissed.

2. Summons seeking leave to appeal filed 22 June 2021 dismissed.

3. Mr Sarina to pay Mr Mackay’s costs of the proceedings in this Court.

Catchwords:

APPEALS – Local Court entered judgment in favour of respondent and dismissed cross-claim – appeal to Supreme Court constituted by Associate Judge dismissed – leave refused to bring appeal on mixed question of fact and law – nature of further appeal to Court of Appeal – whether appeal as of right or with leave – no error attending refusal of leave – appeal dismissed

Legislation Cited:

Local Court Act 2007 (NSW), ss 29(1)(a), 39, 40

Supreme Court Act 1970 (NSW), ss 101, 104, 118

Supreme Court Rules 1970 (NSW), Pt 60 rr 1A(1)(c), 17(a1), Schedule D

Cases Cited:

Gaynor v Attorney General for New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48

Sarina v Mackay [2021] NSWSC 269

Sleiman v Gadalla Pty Ltd [2021] NSWCA 236

Category:

Principal judgment

Parties:

Clinton Sarina (Applicant)
Stewart Mackay (Respondent)

Representation:

Counsel:
J R Young; C Bolger (Applicant)
T Crispin (Respondent)

Solicitors:
Kalantzis Lawyers (Applicant)
Lloyd & Lloyd Solicitors (Respondent)

File Number(s):

2021/00106669; 2021/00296835

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2021] NSWSC 269

Date of Decision:

22 March 2021

Before:

Harrison AsJ

File Number(s):

2019/343943

Judgment

1. GLEESON JA: I agree with Leeming JA.

2. LEEMING JA: Mr Clinton Sarina appeals, or alternatively seeks leave to appeal, from the judgment of an Associate Judge sitting in the Common Law Division dismissing his summons seeking to appeal from two judgments in the Local Court in favour of Mr Stewart Mackay. For the reasons which follow, although Mr Sarina has an appeal as of right, it should be dismissed.

Factual background

3. Mr Mackay is a builder and a director of Robvic Pty Ltd, which had purchased a property in Gosford with a view to developing it. Mr Sarina is a financial consultant and director of Property Asset Consulting Services Pty Ltd (PACS).

4. Mr Mackay’s statement of claim was straightforward. It alleged that pursuant to a written agreement of loan, the sum of $71,000 had been advanced by payments of $25,000 on 17 March 2017 and $46,000 on 30 March 2017, which advances had not been repaid.

5. The Associate Judge recorded that Mr Sarina’s defence to Mr Mackay’s claim made a very serious allegation:

“In further answer to paragraph 1 of the Statement of Claim, the Defendant says that he was presented with a document called a ‘loan agreement’ which he crossed out all clauses relevant to the loan agreement and inserted a heading ‘Receipt for Loan’ which he signed. This is not the document provided in response to the request for particulars or the document pleaded in the Statement of Claim and says that either the Plaintiff has removed his signature from the document where he cross out all contents and inserted a heading Receipt for Loan or in the alternative the signature appearing on the loan agreement relied upon by the Plaintiff is a forgery.”

6. Mr Sarina’s cross-claim alleged an oral loan agreement for amounts totalling $162,949.94 made between 25 September 2015 and 8 August 2017. Mr Sarina contended that the transfers of $25,000 on 17 March 2017 and $46,000 on 30 March 2017 were in fact repayments of that indebtedness. Alternatively, his cross-claim alleged that:

“to the extent that the repayments of $71,000 are a loan by the Cross-defendant to the Cross-claimant, which is denied by the Cross-claimant, the Cross-claimant seeks to set off against the total loan of $162,949.94 the amount of $71,000.”

7. Either way, Mr Sarina’s cross-claim was confined to a claim for $91,949.94 plus fees plus interest, within the $100,000 jurisdictional limit of the Local Court: Local Court Act 2007 (NSW), s 29(1)(a).

8. Mr Mackay contended that the payments made by Mr Sarina were payments towards the Gosford property development, which were paid “to and on behalf of” Robvic.

9. At trial, the loan agreement was in evidence. It was accepted that it had been signed by Mr Sarina at the Blues Point Hotel. Some clauses were deleted (these included clauses relating to winding up, power of attorney, general severability and survival of covenants and caveatable interest). The deletions were initialled by Mr Sarina.

10. Following a two day hearing in the Local Court, Magistrate Michael Barko gave reasons on 4 October 2019 for a judgment in favour of Mr Stewart Mackay in the sum of $66,000 plus interest and the dismissal of Mr Sarina’s cross-claim.

11. Both parties were cross-examined. The Magistrate’s findings were based on his Honour’s assessment of their credibility. His Honour commenced this section of his reasons with the following passage:

“[45]  Quite frankly neither Mr Mackay nor Mr Sarina were impressive witnesses. It was obvious that their evidence was aimed to be self-serving and that they were quick to protect their own interests. I found it rather extraordinary, given the clear issues between the parties, that neither were able to adequately produce documents when called upon to do so and that they were both rather vague, uncertain, or blatantly incorrect about the payment and/or receipt of monies. I formed the distinct view that there was much more ‘behind the scenes’ that both parties were unwilling to reveal in open Court, perhaps to do with the source of or expenditure of monies. To some extent they were both ‘as bad as each other’.”

12. His Honour identified errors in the evidence of Mr Mackay during cross-examination, and that he became defensive when it emerged that he must have been mistaken about some dates. He produced few documents supportive of his claims that the payments made by Mr Sarina were in fact payments on a property development in Gosford. Robvic was, by the time of the trial, being wound up, but neither side had obtained documents from its liquidator.

13. His Honour also identified deficiencies in Mr Sarina’s evidence. He commenced his account thus:

“[48]  Likewise Mr Sarina was unconvincing, as a businessman and an obviously intelligent and worldly man, to explain the circumstances surrounding the meeting at the Hotel on 30March 2017 and the production of documentary evidence in support of his Cross-claim. Hetoo had shortcomings in the manner in which he dealt with Mr Crispin’s cross-examinationalbeit that he did present in a more polished fashion than Mr Mackay.”

14. The Magistrate formed the view that “one of the parties is obviously consciously lying to support his own position”: at [52]. His Honour found that the party who was lying was Mr Sarina. The Magistrate reached the following conclusion concerning Mr Sarina’s claim that Mr Mackay’s loan agreement was a forgery:

“[54]  I am satisfied and find that Mr Sarina has consciously lied about what occurred at the BluesPoint Hotel on 30 March 2017 and that he did in fact execute the Loan Agreement inrecognition of the fact that Mr Mackay had loaned to him in his personal capacity the sum of$71,000. I am also satisfied and find that Mr Mackay’s evidence in respect to thebackground activities and conversations that surrounded the loan is preferable to that of Mr Sarina and that Mr Mackay was genuinely and honestly mistaken about the timing of hisdeposit of the $46,000 portion of the loan. I am also satisfied and find that Mr Sarina has not re-paid any of these loan monies. I will consider further the legal implications of thewritten agreement hereunder noting the dispute between the parties as to the enforceabilityof the Loan Agreement.

[55] My negative findings against Mr Sarina in respect of the Loan Agreement invariably have a significant impact on my findings as to his credibility generally. He has made a serious allegation of fraudulent conduct on the part of Mr Mackay by providing what I consider to be irrational and incredible evidence, particularly given his intelligence and financial experience. The findings I have made hereunder in respect of Mr Sarina’s Cross-claim have also impacted upon my adverse findings against him on Mr Mackay’s Claim – the findings effectively working hand-in-hand.”

15. The Magistrate’s reasons for that conclusion were extensive and nuanced. As will be seen, they also contain some errors. In light of the submissions made in this Court, the reasoning warrants reproduction in full:

“[53]  I am satisfied that the document entitled ‘This Loan Agreement’ (Ex. C), is the original (or copy of the original) and is the genuine document that was amended, initialled, and executed by Mr Sarina at the meeting of the parties at the Blues Point Hotel on 30 March 2017. I prefer the evidence of Mr Mackay as to what occurred at that meeting and I reject the allegation that Mr Mackay has forged any document. Albeit that Mr Mackay was not an impressive witness his evidence was more impressive than that of Mr Sarina. My reasons for so finding are as follows:

(a) Mr Sarina is an experienced businessman who has specialised in matters of finance. He is accustomed to executing detailed written agreements (see for example PACS consultancy deeds) – it does not make sense that he would delete so many provisionsof the Loan Agreement if in fact it was a document that would favour his interests. All Mr Sarina had to do was to change the references on the first page of the document concerning who was the lender and who was the borrower;

(b) Mr Sarina does not dispute that his signature appears on page numbered 16 of the document next to the words ‘Signed by the Borrower’ consistent with Mr Mackay’s case– it does not make sense that he did not place his signature next to the words ‘Signedby the Lender’;

(c) There is no signature on page numbered 17 that follow the words ‘Signed by the Lender’ – see above;

(d) Mr Sarina does not dispute that his initials appear on pages numbered 7, 10, 12, 14, and 16 of the document adjacent to paragraphs which have pen lines written through them, I infer to indicate that the paragraphs are deleted;

(e) The initials of Mr Sarina appear on pages which contain numerous paragraphs that arenot crossed out or initialled – it does not make sense as to why these other paragraphswere not also crossed out;

(f) The paragraphs that are crossed out relate to matters that would be more favourable to a lender, for example: the winding up of the borrower (p. 7); the appointment of thelender as power of attorney in the case of default (p. 10); the provision by the lender ofnotice (p. 12); and the lodgement by the lender of caveats (p. 16) – It does not make sense that Mr Sarina would amend the document to make it more favourable to MrMackay;

(g) The provisions and pages of the Loan Agreement appear to flow seamlessly. There wasno portion of the document that was highlighted as not being consistent with portions that preceded or succeeded it;

(h) There is no issue between the parties that Mr Mackay had deposited $71,000 into Mr Sarina’s account before the Loan Agreement was signed;

(i) There is no written corroboration produced by Mr Sarina that the $71,000 was paid by Mr Mackay as a repayment of personal loans to him;

(j) Prior to Ms Hall’s submissions there was no allegation made by Mr Sarina that he was induced into signing the Loan Agreement by Mr Mackay’s representations – to the contrary Mr Sarina maintained that he took the upper hand in amending the document tosuit his own purposes;

(k) Mr Sarina’s evidence about the manner in which he amended the Loan Agreement document is absolutely nonsensical, irrational, unbelievable, and inconsistent with the document itself. On the one hand he stated that he always initials the bottom of every page of an agreement he signs and yet his own Consultancy Deed (Ex. 6, CS-1, p. 12-15) does not bear any of his initials. Further on the one hand Mr Sarina highlighted that his signature was not witnessed on the Loan Agreement and yet on the other hand his signature on the PACS Deed for the 50% profit was not witnessed. Further, on the one hand Mr Sarina stated that he would always initial the bottom of every page of an agreement that he signed and yet on the other hand he has not done so on the pages of the loan Agreement that he has conceded bear his initials against amendments made;

(l) If the document was to reflect acknowledgment of receipt of re-payments of a loan by Mr Mackay it would have been an extremely simple matter for Mr Sarina to have penned aone paragraph document clearly and concisely evidencing that fact;

(m) Mr Sarina made no reference whatsoever to Mr Crawley being present at the meeting ineither of his two affidavits;

(n) I am satisfied that Mr Mackay deposited $25,000 into Mr Sarina’s bank account on 17 March 2017 and $46,000 into the same account on 30 March 2017 shortly beforeattending the Hotel where the Loan Agreement was signed. Mr Mackay’s bankingrecords make this abundantly clear (see Ex. A, SM1, pp. 18, 19, 21 and 22). It Is obvious that Mr Mackay was wrong in his evidence about the timing of the secondpayment and I accept that this was an honest mistake brought about by his lack of clearrecollection and his failure to pay sufficient attention to his own records;

(o) Mr Mackay’s recollection as to originally dating the Loan Agreement on 29 March 2017is consistent with Mr Sarina’s telephone records (see Ex. 9; ex. 6, CS-1, p. 23) whichrecord that on 29 March 2017 Mr Sarina sent a text message to Mr Mackay which read:

‘Bank of Queensland Clinton L Sarina BSB [XXX] Acc [XXX] $46K Thanks please TT before 3 today see you Blues Point tomorrow 1pm.’

I interpret this message to mean that the $46,000 was originally planned to be paid to Mr Sarina on 29 March 2017.

(p) No challenge was made to the evidence of Mr Laycock in respect of being asked by Mr Mackay to forward a loan agreement to him as he had loaned Mr Sarina money. Isuspect that Mr Laycock relied upon information provided to him from someone else as to the relevant dates as it is clear that by 24 March 2017 there had not been a loan of$71,000 but only $25,000, although Mr Mackay was of the belief that his discussion with Mr Sarina in respect of the further $46,000 occurred on 20 March 2017;

(q) No challenge was made to the authenticity of the email sent from ‘Simka Doncovski’, Mr Laycock’s secretary, to Mr Mackay on 27 March 2017 which attached the draft ‘Loan Agreement’ (see ex. A, SM1, p. 24);

(r) Prior to Mr Mackay commencing to demand repayment of the $71,000 there is no written evidence to corroborate Mr Sarina’s version that the monies were received by him as repayment of loans made to Mr Mackay. To the contrary, the first piece of written evidence to corroborate what occurred on 30 March 2017 is the text message received by Mr Sarina from Mr Mackay on 26 May 2017 (see Ex. A, SM5, p. 61; Ex. 9, last page; Ex. 6, CS-1, p.25) which read:

‘I’ve made promises to pay debts today on the fact that you promised me to pay themoney that you borrowed. I need to talk to you.’

There was no written response by Mr Sarina to this statement in particular any response questioning what was meant by it. To the contrary, within days thereafter Mr Sarina forwarded text messages to Mr Mackay (see Ex. 9, last page) which stated:

‘Hi how much do you need in your account as I cannot speak completely lost myvoice.’

‘Deposit made you miserable old bastard your (sic) getting more like Vince everydayhave a good weekend.’

(s) The first written corroboration of Mr Sarina’s allegations is a text message that he sentto Mr Mackay was on 18 October 2017, 7 months after the meeting, (see Ex. 8, firstpage) which stated:

‘I was never a shareholder or director of Robvic. You borrowed funds from me to helpwith your commitments that I have not received back from you. Furthermore I haveno memory of any cash payment from you for anything do not wish to talk text or hear from you again till Tuesday and if…’

I note that it was on the same day, 18 October 2017, that a ‘Notice of Application toWind Up Company’ was lodged in respect of Robvic. I will refer to this fact further later hereunder;

(t) In about November 2017 Mr Mackay wrote to Mr Sarina by text message (see Ex. A, SM6, p. 63; Ex. 6, CS-1, p. 24) which stated:

‘I will speak with you because it was you that borrowed the money. If you can’t keep your appointment with me than (sic) I will come to you.’

To which Mr Sarina responded:

‘You are not welcome on my private property if you persist to threaten and not gothrough the property (sic) channels you will be prosecuted.’

There was no response from Mr Sarina to the effect that it was Mr Mackay who owedhim money; and

(u) Mr Mackay conceded (when he was not required to and in my view to his credit) that he received $5,000 from Mr Sarina in May 2017 as part-payment of the Loan Agreement.Of note is that the Loan Agreement, in clause 7.(3), provided that the borrower had theright to repay the principal at any time by multiple of $5,000. Mr Sarina’s payment isconsistent with this.”

16. On that basis his Honour dismissed the cross-claim, finding that “all of the monies that were transferred by Mr Sarina to or on behalf of Mr Mackay were not by way of personal loans to Mr Mackay but rather advances made to Robvic, either directly or indirectly, for the purposes of furthering the Gosford Property project”: at [57]. His Honour also found in favour of Mr Mackay on his statement of claim, rejecting various issues concerning construction, the absence of consideration and estoppel which had been raised by Mr Sarina and which need not be summarised for present purposes.

17. Judgment was entered in favour of Mr Mackay on his statement of claim for $66,000 (he having accepted that Mr Sarina had repaid $5,000). The cross-claim was dismissed.

The appeal to the Supreme Court

18. An appeal lies from a judgment of the Local Court pursuant to ss 39 and 40 of the Local Court Act 2007 (NSW). Section 39 confers an appeal as of right “but only on a question of law”. Section 40 confers an appeal on a ground that involves a question of mixed law and fact, but only by leave of the Supreme Court. The Supreme Court constituted by an Associate Judge has jurisdiction to hear and determine civil appeals from the Local Court: Supreme Court Rules 1970 (NSW), Pt 60 r 1A(1)(c) read with Schedule D, cl 5B.

19. The appeal was heard by the Associate Judge on 16 February 2021 and dismissed, with costs, by judgment delivered on 22 March 2021: Sarina v Mackay [2021] NSWSC 269. Mr Sarina’s appeal identified four grounds. All were dismissed. No issue is taken with the dismissal of the first, second or third grounds. Only the fourth is presently relevant. That ground was formulated as follows:

“The Learned Magistrate erred in finding that all the payments made by Sarina to or on behalf of Mackay were advanced to Robvic Pty Ltd for the purpose of furthering the Gosford Property Project.”

20. It will be convenient to defer summarising her Honour’s reasons until I have explained how Mr Sarina’s further appeal lies to this Court, the nature of that appeal, and the way it narrowed during the hearing.

The further appeal to this Court

21. The judgment and orders of the Associate Judge have effect as a judgment and order of the Court: Supreme Court Act 1970 (NSW), s 118(4). The right of appeal to this Court created by s 101 of the Supreme Court Act is subject to s 104, which provides that “[s]ubject to the rules, an appeal shall not lie to the Court of Appeal from any decision, judgment, order, opinion, direction or determination of the Court in a Division constituted by an associate Judge ...”. The qualification “subject to the rules” is important, because Part 60 r 17(a1) of the Supreme Court Rules provides for an appeal to the Court of Appeal in accordance with, relevantly, s 101 of the Supreme Court Act. That right of appeal is subject to a requirement of leave in any case to which, relevantly, s 101(2) applies. This was explained in Sleiman v Gadalla Pty Ltd [2021] NSWCA 236 at [25]-[28].

21. It follows that (a) the prohibition in s 104 is displaced, (b) s 101 applies, and (c) there is a right of appeal to this Court, subject to the qualifications in s 101(2).

22. There having been a final hearing of Mr Sarina’s summons before the Associate Judge, the only paragraph of s 101(2) potentially applicable is s 101(2)(r) which imposes a requirement of leave in an appeal:

“(i) that involves a matter at issue amounting to or of the value of $100,000 or more, or

(ii) that involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more.”

24. Notwithstanding some statements in Mr Sarina’s written submissions which suggested the contrary, it was made clear in oral address that he challenged not only the judgment of the Local Court dismissing his cross-claim, but also the judgment of the Local Court on Mr Mackay’s claim. That had also been the position before the Associate Judge, where Mr Sarina’s summons (which had not been reproduced in the appeal books) had sought orders setting aside the judgment of the Local Court (prayer 3) and judgment in favour of Mr Sarina with respect to his Defence and Cross-Claim (prayer 4). That is to say, rather than being a judgment debtor in the amount of $66,000 plus interest and fees, the outcome sought by Mr Sarina was that he would be a judgment creditor in the amount of some $91,949 plus interest and fees. In determining whether the $100,000 threshold is exceeded, regard is had to the combined effect of both claims: Gaynor v Attorney General for New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48 at [13]-[20] esp at [19].

25. In this Court (and perhaps before the Associate Judge; the position is not clear) Mr Sarina accepted that judgment could not be given in his favour even if his appeal were successful, but that a retrial would be necessary. That does not detract from the reasoning above to the effect that the appeal involves a matter at issue amounting to $100,000 or more.

26. It may seem a little peculiar that in an appeal from the Local Court which is subject to a $100,000 jurisdictional limit, the amount in issue can exceed $100,000 for the purposes of s 101(2)(r), but that is the present case. Both the plaintiff/cross-defendant and the defendant/cross-claimant sought judgments in their favour in excess of $50,000. The defendant/cross-claimant failed in his defence and failed on his cross-claim. He was entitled to exercise his rights of appeal under ss 39 and 40 of the Local Court Act to challenge both judgments and replace them with judgments in his favour. The dismissal of that appeal is one which involves a matter at issue amounting to in excess of $100,000.

27. For those reasons, Mr Sarina’s appeal lies as of right. The summons seeking leave to appeal in identical terms is superfluous and should be dismissed.

The narrowing of issues on appeal

28. Both the draft notice of appeal accompanying the summons seeking leave to appeal to this Court originally filed by Mr Sarina, and the notice of appeal filed subsequently identified the same six proposed grounds. Grounds 4, 5 and 6 were abandoned towards the outset of Mr Sarina’s submissions.

29. Grounds 1 and 2 maintained that:

“1. The Court failed to understand and or properly consider Ground 4 of the appeal to the Supreme Court.

2. The Court erred in finding that Ground 4 of the appeal to the Supreme Court was not an error of law”.

30. Mr Young came close to abandoning these grounds, if he did not indeed do so.

31. The Associate Judge summarised, in some detail, Mr Sarina’s submissions in support of the fourth ground (at [79]-[92]) and Mr Mackay’s submissions opposing it (at [93]-[94]). Ultimately, Mr Young conceded that the Associate Judge was correct to summarise what had been said on behalf of Mr Sarina at [95]:

“Sarina advances this ground of appeal on the basis that the Magistrate made a series of mistaken findings of fact in his consideration of Sarina’s cross-claim. Although errors of fact alone are not appealable, Sarina more broadly alleges that the Magistrate’s errors amount to more than the sum of their parts. Together, they are said to have formed the basis of his Honour’s conclusion that Sarina advanced moneys to Mackay for business purposes without evidence, such that this ground of appeal raises a mixed question of fact and law.”

32. Further, Mr Young also confirmed that he could not be heard to say that ground 4 before the Associate Judge had been advanced as a pure question of law, namely, that there was no evidence to support that finding. (Neither the transcript nor Mr Sarina’s written submissions (if any) were provided to this Court.)

33. It follows that neither ground 1 nor ground 2 can be maintained. To be clear, it may be noted that this does not turn on the way the hearing was conducted before the Associate Judge. In a case such as the present, which was light on documents and essentially turned upon the testimony of the parties, there was evidence – testimonial evidence – supportive of each side’s claims. The fact that parts of it may have been uncorroborated did not elevate Mr Sarina’s complaint into one involving a question of law alone for the purposes of s 39 of the Local Court Act because there was no evidence to support the judgment. Thus, although Mr Sarina had an appeal as of right to this Court, leave was required to appeal to the Supreme Court.

34. Thus it became clear that the appeal to this Court was confined to a single ground, namely, ground 3 which was in the following terms:

“In the alternative, the Court erred in refusing leave pursuant to s.40 of the Local Court Act 2007 (NSW) in respect of Ground 4 of the appeal to the Supreme Court.”

35. Mr Young did not dispute the test applied by her Honour, namely, that leave would only be granted if the appeal raised an issue of principle or a question of public importance or an injustice which is more than merely arguable. Still further, Mr Young accepted that the appeal raised no issue of principle or question of public importance. Clearly, that concession was properly made. Accordingly, the only question was whether there was appellable error in the conclusion reached by the Associate Judge that this was not a case involving an injustice which was more than merely arguable such as to warrant a grant of leave.

The reasons of the Associate Judge for refusing leave on ground 4

36. I return then to the reasons given by the Associate Judge for refusing leave on ground 4. Her Honour expressly noted that there were some factual errors in the findings made by the Magistrate. One concerned two payments mentioned in [57(f)] which had predated the consultancy agreement between Robvic and PACS. A more serious one, upon which Mr Sarina placed great weight, was the finding at [57(o)], commencing with the words “Quite extraordinarily” which concededly was wrong insofar as it placed Mr Crawley at the meeting of 30 March 2017.

37. However, her Honour then identified a deal of supportive evidence which had been set out by the Magistrate. These matters were summarised at [100]. Her Honour then said at [101] and [102]:

“[101] As for the Magistrate’s error in drawing significance from Sarina’s failure to place Crawley at the 30 March 2017 meeting (which it is common ground that Crawley did not attend), that finding formed only a part of the Magistrate’s extensive reasons for concluding that Sarina lacked credibility. The Magistrate also provided a lengthy explanation for concluding that Mr Crawley’s evidence generally was not credible, including that at all relevant times in 2016 and 2017 he was a disinterested observer in the transactions; that the conversations he described overhearing during the period were not corroborated by contemporaneous notes; and that he was a long-term social friend of Sarina and appeared to be attempting to assist Sarina’s claim ([57(p)]).

[102] The Magistrate’s conclusion was also informed by the credibility findings he had made against Sarina generally, and his Honour’s view that Sarina’s claims did not accord with the behaviour of a person with such extensive business and financial experience. The Magistrate’s apparent errors in relation to certain facts appear within a matrix of findings which support his Honour’s conclusion that Sarina had advanced moneys to Mackay for the purposes of pursing the Gosford Property project through and in relation to their respective alter egos, PACS and Robvic.”

38. Her Honour then concluded at [103]:

“For these reasons, I am not satisfied that this ground of appeal raises an issue of principle or a question of public importance. Nor does his Honour’s decision to dismiss Sarina’s cross-claim, despite having erred in relation to certain facts in dispute, which are not alone appealable to this Court, involve an injustice which is more than merely arguable, such that it warrants the grant of leave. I am therefore of the view that leave to appeal should not be granted. This ground of appeal fails.”

39. Most of Mr Sarina’s submissions at the hearing in this Court were directed to what were said to be errors on the part of the Magistrate. But it is to be recalled that the appeal to this Court is from the decision of the Associate Judge, and her Honour was only called upon to determine whether there should be a grant of leave. Her Honour acknowledged that the Magistrate had made errors, but further observed that there were a number of matters which sustained the Magistrate’s conclusion. That reasoning was appropriate in assessing whether this was a case where there was an injustice which was more than merely arguable. At one stage Mr Sarina complained that her Honour’s conclusion to the contrary was unsupported by reasons. However, as is explicit at the commencement of [103], her conclusion was supported by the reasoning which preceded it, the essence of which has been reproduced above.

40. The Associate Judge correctly identified some factual errors in a decision of the Local Court with extensive reasoning over a large number of areas of detail. Her Honour concluded that those errors did not detract from the Magistrate’s conclusion that it was Mr Sarina who was lying about the payments, and not Mr Mackay. I do not see any error in her Honour’s forming the view that this was not a case for leave. Her Honour with respect correctly noted that the requirement of leave for an appeal from the Local Court on a matter extending to questions of fact was important having regard to the limited amounts involved, in order to prevent costs rising out of proportion to the matters in dispute. This was a clear case for the refusal of leave.

Orders

41. For those reasons I propose the following orders:

1. Notice of appeal filed 19 October 2021 dismissed.

2. Summons seeking leave to appeal filed 22 June 2021 dismissed.

3. Mr Sarina to pay Mr Mackay’s costs of the proceedings in this Court.

42. SACKAR J: I agree with the reasons of Leeming JA and the orders he proposes.

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Decision last updated: 14 December 2021