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

GLEESON JA: I agree with Leeming JA.
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

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).
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.
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…

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 Sarina v Mackay

Details

AGLC: Sarina v Mackay [2021] NSWCA 306
Case: [2021] NSWCA 306
Decision Date: 14 December 2021

CaseChat Overview and Summary

The appeal concerned a dispute between Mr Sarina and Mr Mackay, which had previously been heard in the Local Court. The Local Court had entered judgment in favour of Mr Mackay and dismissed Mr Sarina's cross-claim. Mr Sarina then appealed to the Supreme Court, constituted by an Associate Judge, who dismissed this appeal. Mr Sarina sought leave to bring a further appeal to the Court of Appeal.

The primary legal issue before the Court of Appeal was whether Mr Sarina had an appeal as of right to the Court of Appeal, or whether leave to appeal was required. This question turned on the nature of the appeal that had been dismissed by the Associate Judge, specifically whether it involved a mixed question of fact and law.

The Court of Appeal held that the appeal to the Associate Judge involved a mixed question of fact and law, and therefore, an appeal from the Associate Judge's decision to the Court of Appeal required leave. The Court found no error in the Associate Judge's refusal of leave to appeal. Consequently, the Court of Appeal dismissed Mr Sarina's notice of appeal and his summons seeking leave to appeal, ordering him to pay Mr Mackay's costs.

Orders

Orders of the court

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.

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:	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