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Sarkis v Moussa

Sarkis v Moussa

Case [2012] NSWCA 357 30 October 2012

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Sarkis v Moussa [2012] NSWCA 357
Hearing dates: 30 October 2012
Decision date: 30 October 2012
Before: Barrett JA at [1], [24] and [28]
Tobias AJA at [25]
Ward J at [2]
Decision:
Application for review by Amended Notice of Motion filed 18 June 2012 be dismissed with costs.
[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: PRACTICE AND PROCEDURE - application for review pursuant to s 46(4) Supreme Court Act 1970 of decision of a Judge of Appeal dismissing summons for leave to appeal on the respondent's motion - applicant must demonstrate that there has been an error of principle in the exercise of the power or that the decision was plainly wrong - heavy burden to discharge - whether there was plainly an error in the construction of ss 58 and 60 of the Bankruptcy Act 1966 (Cth) - whether there was an error in principle in dismissing proceedings pursuant to rr 13.4 and 51.1 of the Uniform Civil Procedure Rules 2005 (NSW)
Legislation Cited: Bankruptcy Act 1966 (Cth)
Civil Procedure Act 2005 (NSW)
Local Court Act 2007 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Aware Industries Ltd v Robinson [1997] FCA 571; 75 FCR 600
Baulkham Hills Shire Council v Stankovic [2009] NSWCA 281
Campbell v Metway Leasing Ltd [2001] FCA 1311; 188 ALR 100
Cummings v Claremont Petroleum [1996] HCA 19; 185 CLR 124
Daemar v Industrial Commission of New South Wales, (1988) 12 NSWLR 45
Kiri Te Kanawa v Leading Edge Events Australia Pty Ltd [2007] NSWCA 274
Lo v Iverarch [2009] NSWCA 92
Patrick v Howorth [2002] NSWCA 285
Rinehart v Welker [2011] NSWCA 403
Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136
Want v Moss (1889) 10 LR (NSW) 274
Wentworth v Wentworth (1994) 35 NSWLR 726
Texts Cited: Ritchies' Uniform Civil Procedure NSW
Category: Principal judgment
Parties: Toufic Laba Sarkis (Applicant)
Mahmoud Moussa (Respondent)
Representation: Counsel:
In person (Applicant)
M K Rollinson (Respondent)
Solicitors:
In person (Applicant)
Benjamin & Khoury (Respondent)

File Number(s): 10/292546
Decision under appeal

Jurisdiction:

9003

Citation:

[2012] NSWCA 136

Date of Decision:

2012-05-14 00:00:00

Before:

Beazley JA

File Number(s):

10/292546

Judgment

BARRETT JA: Ward J will deliver the first judgment.

WARD J: By Amended Notice of Motion filed on 18 June 2012, Mr Toufic Laba Sarkis seeks orders, among other things, setting aside the judgment and orders of Beazley JA on 14 May 2012 by which her Honour dismissed with costs a Summons by Mr Sarkis seeking leave to appeal from…

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 Sarkis v Moussa

Details

AGLC: Sarkis v Moussa [2012] NSWCA 357
Case: [2012] NSWCA 357
Decision Date: 30 October 2012

CaseChat Overview and Summary

The applicant, Sarkis, sought a review pursuant to s 46(4) of the *Supreme Court Act 1970* (NSW) of a decision by a Judge of Appeal. The Judge of Appeal had dismissed a summons for leave to appeal on the respondent's, Moussa's, motion.

The primary legal issues before the court were whether there had been an error of principle in the exercise of the Judge of Appeal's power, or if the decision was plainly wrong. Specifically, the court considered whether there was a plain error in the construction of ss 58 and 60 of the *Bankruptcy Act 1966* (Cth) and whether there was an error in principle in dismissing the proceedings pursuant to rr 13.4 and 51.1 of the *Uniform Civil Procedure Rules 2005* (NSW). The court noted the heavy burden on the applicant to discharge in demonstrating such an error.

The court found that the applicant had not discharged the heavy burden required to demonstrate an error of principle or that the decision was plainly wrong. Consequently, the application for review was dismissed.

The application for review by Amended Notice of Motion filed 18 June 2012 was dismissed with costs.

Orders

Orders of the court

Application for review by Amended Notice of Motion filed 18 June 2012 be dismissed with costs.

[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

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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.

Citations

AGLC Citation

Sarkis v Moussa [2012] NSWCA 357

Most Recent Citation

Sarkis v Moussa [2013] FCA 373

Cases citing this decision · 4 of 4 shown

Luck v Chief Executive Officer of Centrelink
[2017] FCAFC 92 Para 17

…There is no question that an application for leave to appeal is an “action” within the meaning of s 60(2): see Sarkis v Moussa (2012) 262 FLR 359 at [31]-[37] per Beazley JA. So too is an appeal: see Cummings v Claremont Petroleum NL (1996) 185 CLR 124 at 130 per Brennan CJ, Gaudron and McHugh JJ.…
Rowe v Official Trustee in Bankruptcy
[2014] FCCA 2819 Para 2

…it is apt to include an appeal ( Healey v Prentice (No 2) [2000] FCA 1598 at [35]; Cummins v Claremont Petroleum NL (1996) 185 CLR 124 at 130 to 133; Sarkis v Moussa (2012) 262 FLR 359 at [31] to [32]) and a review of a decision made by a Commonwealth agency before the Administrative Appeal Tribunal ( Cook v Secretary, D…
Sarkis v Moussa
[2013] FCA 373 Para 17

…ber 2012, the Court of Appeal (constituted by three judges) dismissed Mr Sarkis’ application for review of Beazley JA’s decision: Sarkis v Moussa [2012] NSWCA 357.…
Kyriakou v Jiang
[2013] NSWCA 105 Para 1

…authorities, in particular Transglobal Capital Pty Limited v Yolarno Pty Limited [2004] NSWCA 136, (2004) 60 NSWLR 143 referred to in Sarkis v Moussa [2012] NSWCA 357 there is a heavy burden on an applicant for review of this kind to discharge. I am not persuaded that that burden has been discharged.…

View all 4 citing cases →

Cases cited in this decision · 12 of 12 shown

Sarkis v Moussa
[2012] NSWCA 136

…ondent) Solicitors: In person (Applicant) Benjamin & Khoury (Respondent) File Number(s): 10/292546 Decision under appeal Jurisdiction: 9003 Citation: [2012] NSWCA 136 Date of Decision: 2012-05-14 00:00:00 Before: Beazley JA File Number(s): 10/292546…
Rinehart v Welker
[2011] NSWCA 403 Para 1

…More recently, in Rinehart v Welker [2011] NSWCA 403, the Court of Appeal noted the heavy burden that a person seeking a s 46(4) review has to discharge in order to have a Judge of Appeal's order set aside (at [48]) (referring there also to Kiri Te Kanawa v Leading Edge Events Australia Pty Ltd [2007] NSWCA 274 at…
Baulkham Hills Shire Council v Stankovic
[2009] NSWCA 281

…orm Civil Procedure Rules 2005 (NSW) Cases Cited: Aware Industries Ltd v Robinson [1997] FCA 571; 75 FCR 600 Baulkham Hills Shire Council v Stankovic [2009] NSWCA 281 Campbell v Metway Leasing Ltd [2001] FCA 1311; 188 ALR 100 Cummings v Claremont Petroleum [1996] HCA 19; 185 CLR 124 Daemar v Industrial Commission o…
Lo v Iverach
[2009] NSWCA 92 Para 1

…order set aside (at [48]) (referring there also to Kiri Te Kanawa v Leading Edge Events Australia Pty Ltd [2007] NSWCA 274 at [14] and Lo v Iverarch [2009] NSWCA 92 at [29]).…
Kiri Te Kanawa v Leading Edge Events Australia Pty Ltd
[2007] NSWCA 274 Para 1

…charge in order to have a Judge of Appeal's order set aside (at [48]) (referring there also to Kiri Te Kanawa v Leading Edge Events Australia Pty Ltd [2007] NSWCA 274 at [14] and Lo v Iverarch [2009] NSWCA 92 at [29]).…
Transglobal Capital Pty Ltd v Yolarno Pty Ltd
[2004] NSWCA 136 Para 1

…re has been an error of principle in the exercise of the power or that the decision was plainly wrong ( Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136; Patrick v Howorth [2002] NSWCA 285). It is noted in Ritchies' Uniform Civil Procedure NSW that this construction of the power derives either from th…
Patrick v Howorth
[2002] NSWCA 285 Para 1

…the exercise of the power or that the decision was plainly wrong ( Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136; Patrick v Howorth [2002] NSWCA 285). It is noted in Ritchies' Uniform Civil Procedure NSW that this construction of the power derives either from the legislative context of that statut…
Campbell v Metway Leasing Ltd
[2001] FCA 1311 Para 1

…all within the meaning of "other person" in s 60(3), citing Aware Industries Ltd v Robinson [1997] FCA 571; 75 FCR 600; Campbell v Metway Leasing Ltd [2001] FCA 1311; 188 ALR 100). (One of the grounds on which Mr Sarkis now seeks a review of her Honour's decision is that the trustees took no action within the 28 d…
Aware Industries Ltd v Robinson
[1997] FCA 571 Para 1

…December 2011 (her Honour noting that Mr Sarkis did not fall within the meaning of "other person" in s 60(3), citing Aware Industries Ltd v Robinson [1997] FCA 571; 75 FCR 600; Campbell v Metway Leasing Ltd [2001] FCA 1311; 188 ALR 100). (One of the grounds on which Mr Sarkis now seeks a review of her Honour's d…
Wentworth v Wentworth
[1995] HCATrans 353 Para 1

…ocedure NSW that this construction of the power derives either from the legislative context of that statutory provision (citing Wentworth v Wentworth (1994) 35 NSWLR 726) or from the proposition that an application to discharge or vary is essentially a matter of practice and procedure.…
WENTWORTH v WENTWORTH
[1994] NSWCA 346 Para 1

…hies' Uniform Civil Procedure NSW that this construction of the power derives either from the legislative context of that statutory provision (citing Wentworth v Wentworth (1994) 35 NSWLR 726) or from the proposition that an application to discharge or vary is essentially a matter of practice and procedure.…
Cummings v Claremont Petroleum NL
[1996] HCA 19

…0 Baulkham Hills Shire Council v Stankovic [2009] NSWCA 281 Campbell v Metway Leasing Ltd [2001] FCA 1311; 188 ALR 100 Cummings v Claremont Petroleum [1996] HCA 19; 185 CLR 124 Daemar v Industrial Commission of New South Wales, (1988) 12 NSWLR 45 Kiri Te Kanawa v Leading Edge Events Australia Pty Ltd [2007] NSWC…

Legislation cited in this decision · 5

Bankruptcy Act 1966 (Cth)
1 mention (from Para 1)
Civil Procedure Act 2005 (NSW)
1 mention
Local Court Act 2007 (NSW)
1 mention (from Para 1)
Supreme Court Act 1970 (NSW)
1 mention (from Para 1)
Uniform Civil Procedure Rules 2005 (NSW)
1 mention

Medium Neutral Citation:	Sarkis v Moussa [2012] NSWCA 357
Hearing dates:	30 October 2012
Decision date:	30 October 2012
Before:	Barrett JA at [1], [24] and [28] Tobias AJA at [25] Ward J at [2]
Decision:	Application for review by Amended Notice of Motion filed 18 June 2012 be dismissed with costs. [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:	PRACTICE AND PROCEDURE - application for review pursuant to s 46(4) Supreme Court Act 1970 of decision of a Judge of Appeal dismissing summons for leave to appeal on the respondent's motion - applicant must demonstrate that there has been an error of principle in the exercise of the power or that the decision was plainly wrong - heavy burden to discharge - whether there was plainly an error in the construction of ss 58 and 60 of the Bankruptcy Act 1966 (Cth) - whether there was an error in principle in dismissing proceedings pursuant to rr 13.4 and 51.1 of the Uniform Civil Procedure Rules 2005 (NSW)
Legislation Cited:	Bankruptcy Act 1966 (Cth) Civil Procedure Act 2005 (NSW) Local Court Act 2007 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Aware Industries Ltd v Robinson [1997] FCA 571; 75 FCR 600 Baulkham Hills Shire Council v Stankovic [2009] NSWCA 281 Campbell v Metway Leasing Ltd [2001] FCA 1311; 188 ALR 100 Cummings v Claremont Petroleum [1996] HCA 19; 185 CLR 124 Daemar v Industrial Commission of New South Wales, (1988) 12 NSWLR 45 Kiri Te Kanawa v Leading Edge Events Australia Pty Ltd [2007] NSWCA 274 Lo v Iverarch [2009] NSWCA 92 Patrick v Howorth [2002] NSWCA 285 Rinehart v Welker [2011] NSWCA 403 Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136 Want v Moss (1889) 10 LR (NSW) 274 Wentworth v Wentworth (1994) 35 NSWLR 726
Texts Cited:	Ritchies' Uniform Civil Procedure NSW
Category:	Principal judgment
Parties:	Toufic Laba Sarkis (Applicant) Mahmoud Moussa (Respondent)
Representation:	Counsel: In person (Applicant) M K Rollinson (Respondent) Solicitors: In person (Applicant) Benjamin & Khoury (Respondent)
File Number(s):	10/292546
Decision under appeal	Jurisdiction: 9003 Citation: [2012] NSWCA 136 Date of Decision: 2012-05-14 00:00:00 Before: Beazley JA File Number(s): 10/292546