Soloman v Savage - [2019] NSWCA 294

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Soloman v Savage [2019] NSWCA 294
Hearing dates: 29 October 2019 - On the papers - Submissions 27 November 2019
Date of orders: 05 December 2019
Decision date: 05 December 2019
Before: Emmett AJA; Simpson AJA
Decision:
The application for leave to appeal be dismissed with costs.

Catchwords: CIVIL PROCEDURE – Court of Appeal – Application for leave to appeal – whether the appeal points to any error of principle on the part of the primary judge in the exercise of judicial discretion – whether the applicant had sufficient opportunity to file the relevant evidence.
Legislation Cited: Contracts Review Act 1980 (NSW)
Cases Cited: House v The King (1936) 55 CLR 499
Soloman v Savage [2018] NSWCA 249
Category: Procedural and other rulings
Parties: Phillip Aziz Soloman (Applicant)
Robin Barry Savage (Respondent)
Representation:
Counsel:
R Ardino (Applicant)
T Davie (Respondent)
Solicitors:
Morgan Ardino & Co (Applicant)
Kennedy & Cooke Lawyers (Respondent)

File Number(s): 2019/177241
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2019] NSWDC 223

Date of Decision:

4 June 2019

Before:

Dicker DCJ

File Number(s):

2016/137741

Judgment

THE COURT: By notice of motion filed on 2 September 2019, the applicant, Mr Phillip Soloman, seeks leave to appeal from orders made by a judge of the District Court (the primary judge) on 4 June 2019. By the motion, Mr Soloman sought to set aside or vary a judgment of the District Court entered on 27 November 2017 against him in favour of the respondent, Mr Robin Savage. The judgment was in the sum of $173,400 comprising a claim of $60,000 and interest of $113,400. On 4 June 2019, the primary judge ordered that the notice of motion be dismissed and ordered that he pay Mr Savage’s costs of the motion.
The litigation between Mr Savage and Mr Soloman dates back to 3 May 2016, when Mr Savage filed a statement of claim in the Bega Registry of the District Court claiming that, by an agreement in writing dated 9 August 2012 (the Agreement) between Mr Savage and Mr Soloman, Mr Savage agreed to lend the sum of $60,000 to Mr Soloman for a period of three months from 9 August 2012. Mr Savage alleges that it was an express term of the Agreement that Mr Soloman would pay interest monthly on that sum.
On 21 June 2016, Mr Soloman filed a notice of appointment of Mr Edmund El-Khoury as his solicitor for the purposes of the proceedings. On the same day, a defence was filed on behalf of Mr Soloman in which Mr Soloman denied liability. Mr Soloman did not admit that the Agreement was binding or that, on its proper construction, it gave rise to the obligation alleged by Mr Savage.
On 31 July 2016, a cross claim was filed on behalf of Mr Soloman against Mr Savage alleging that there was an arrangement between the…

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 Soloman v Savage

Details

AGLC: Soloman v Savage [2019] NSWCA 294
Case: [2019] NSWCA 294
Decision Date: 05 December 2019

CaseChat Overview and Summary

The Court of Appeal of New South Wales considered an application for leave to appeal in *Soloman v Savage*. The applicant sought to challenge a decision made by a primary judge, though the specific nature of the underlying dispute between the parties is not detailed in the provided text.

The central legal issues before the Court of Appeal were whether the appeal points demonstrated any error of principle by the primary judge in the exercise of their judicial discretion, and whether the applicant had been afforded adequate opportunity to file relevant evidence. These questions focused on the proper scope of appellate review of discretionary judgments and the procedural fairness afforded to the parties.

The Court of Appeal determined that the appeal points did not disclose any error of principle in the primary judge's exercise of discretion. Furthermore, the Court was satisfied that the applicant had sufficient opportunity to file the necessary evidence. Consequently, the application for leave to appeal was dismissed with costs.

Orders

Orders of the court

The application for leave to appeal be dismissed with costs.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Soloman v Savage [2019] NSWCA 294
Hearing dates:	29 October 2019 - On the papers - Submissions 27 November 2019
Date of orders:	05 December 2019
Decision date:	05 December 2019
Before:	Emmett AJA; Simpson AJA
Decision:	The application for leave to appeal be dismissed with costs.
Catchwords:	CIVIL PROCEDURE – Court of Appeal – Application for leave to appeal – whether the appeal points to any error of principle on the part of the primary judge in the exercise of judicial discretion – whether the applicant had sufficient opportunity to file the relevant evidence.
Legislation Cited:	Contracts Review Act 1980 (NSW)
Cases Cited:	House v The King (1936) 55 CLR 499 Soloman v Savage [2018] NSWCA 249
Category:	Procedural and other rulings
Parties:	Phillip Aziz Soloman (Applicant) Robin Barry Savage (Respondent)
Representation:	Counsel: R Ardino (Applicant) T Davie (Respondent) Solicitors: Morgan Ardino & Co (Applicant) Kennedy & Cooke Lawyers (Respondent)
File Number(s):	2019/177241
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2019] NSWDC 223 Date of Decision: 4 June 2019 Before: Dicker DCJ File Number(s): 2016/137741