Smith v Yusen Daly Smith International (In Liq)

The appeal concerned the competence of an appeal to the Court of Appeal of New South Wales, brought by Smith against Yusen Daly Smith International (In Liq). The dispute revolved around the interpretation of certain provisions of the *Supreme Court Act 1970* (NSW), specifically sections 38, 46, and 101, in relation to the connection between a judge of the Supreme Court and a judge of appeal. Additionally, the appeal addressed issues concerning remedies, including whether there was an entitlement to solicitor-client costs and whether payments made as a surety gave rise to an entitlement to subrogation.

The primary legal issues before the court were: first, whether the appeal was competent given the alleged connection between a Supreme Court judge and a judge of appeal; and second, the proper determination of remedies, specifically concerning the availability of solicitor-client costs and the application of subrogation principles in the context of surety payments.

The court considered the provisions of the *Supreme Court Act 1970* (NSW) and relevant case law to determine the competence of the appeal. It analysed the nature of the connection alleged and its impact on the impartiality and appearance of justice. Regarding the remedies, the court examined the principles governing the award of solicitor-client costs, which are typically reserved for exceptional circumstances, and the doctrine of subrogation, which allows a surety who has paid a debt to step into the shoes of the creditor and pursue the principal debtor. The court's reasoning would have addressed whether these principles were engaged and satisfied on the facts before it.

The final orders of the court are detailed in paragraph [83] of the judgment.