Soloman v Savage - [2018] NSWCA 249

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Soloman v Savage [2018] NSWCA 249
Hearing dates: 18 October 2018
Decision date: 01 November 2018
Before: Macfarlan JA at [1];
Leeming JA at [2];
Sackville AJA at [58].
Decision:
1. Appeal dismissed with costs.
2. Grant leave to Mr El Khoury to file and serve any submissions and/or evidence within 21 days of today.
Catchwords: PRACTICE – refusal of adjournment – notice of motion and affidavit sent to court on day before hearing – affidavit stated that defendant had received menacing text messages threatening him if he attended court – no attendance by defendant or anyone on his behalf – trial judge granted two short adjournments until the afternoon – notice of motion for adjournment then dismissed for want of prosecution – no evidence establishing a solicitor or barrister or agent could not appear – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW), Division 3 of Part 7
Supreme Court Act 1970 (NSW), s 101
Uniform Civil Procedure Rules, rr 7.29, 8.2, 36.16, 51.9, 51.28, 51.29
Cases Cited: ACES Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia (2014) 89 NSWLR 209; [2014] NSWCA 402
Maund v Crown in right of the State of New South Wales [2013] NSWCA 226
McGrath v Troy as administratrix of the estate of the Late Warren Terence Wade [2010] NSWSC 1470
Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40
Reznitsky v Director of Public Prosecutions (NSW) [2014] NSWCA 79
Texts Cited: None
Category: Principal judgment
Parties: Phillip Aziz Soloman (Appellant)
Robin Barry Savage (Respondent)
Representation:
Counsel:
M Mando (Appellant)
T Davie (Respondent)
Solicitors:
Edmond Khoury Solicitors (Appellant)
Kennedy & Cooke Lawyers (Respondent)

File Number(s): 2017/387968
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

None

Date of Decision:

27 November 2017

Before:

Blackmore DCJ

File Number(s):

2016/137741

Judgment

MACFARLAN JA: I agree with the orders proposed by Leeming JA and, subject to Sackville AJA’s observations (with which I agree), with his Honour’s reasons.
LEEMING JA: Mr Phillip Aziz Soloman appeals from a judgment of the District Court given on 27 November 2017 in the amount of $173,400, comprising a claim of $60,000 and interest of $113,400. The appeal lies as of right, for two reasons. The first is that for the purposes of the $100,000 threshold in s 101(2)(r) of the Supreme Court Act 1970 (NSW), interest contributes to the amount: see Maund v Crown in right of the State of New South Wales [2013] NSWCA 226 at [7]. Secondly, although there was no appearance by the respondent, the matter proceeded on a final basis. It had been listed for final hearing, and it is clear from the transcript that although Mr Savage moved ex parte, the judgment was neither a default judgment nor a summary judgment.
The judgment was obtained in Mr Soloman’s absence, and in this Court…

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 [2018] NSWCA 249
Case: [2018] NSWCA 249
Decision Date: 01 November 2018

CaseChat Overview and Summary

The appeal concerned the refusal of an adjournment by the trial judge in proceedings between Soloman and Savage. The defendant, Savage, had sent a notice of motion and an affidavit to the court on the day before the hearing. The affidavit alleged that Savage had received menacing text messages threatening him if he attended court. Savage did not attend the hearing, nor did anyone appear on his behalf.

The primary legal issue before the appellate court was whether the trial judge erred in dismissing Savage's application for an adjournment and subsequently dismissing the notice of motion for want of prosecution. This involved considering the adequacy of the evidence presented to support the adjournment request and the trial judge's discretion in managing the proceedings.

The appellate court found that the trial judge had acted appropriately. The judge had granted two short adjournments to allow for the defendant's attendance or representation. However, no evidence was presented to establish that a solicitor, barrister, or any other agent could not appear on Savage's behalf. The affidavit's claims about menacing text messages, while noted, did not, in the absence of further evidence or explanation, justify a further adjournment or excuse the lack of representation. The trial judge's decision to dismiss the motion for want of prosecution was therefore upheld.

The appeal was dismissed with costs. Leave was granted to Mr El Khoury to file and serve any submissions and/or evidence within 21 days of the judgment.

Orders

Orders of the court

1. Appeal dismissed with costs.

2. Grant leave to Mr El Khoury to file and serve any submissions and/or evidence within 21 days of today.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Soloman v Savage [2018] NSWCA 249
Hearing dates:	18 October 2018
Decision date:	01 November 2018
Before:	Macfarlan JA at [1]; Leeming JA at [2]; Sackville AJA at [58].
Decision:	1. Appeal dismissed with costs. 2. Grant leave to Mr El Khoury to file and serve any submissions and/or evidence within 21 days of today.
Catchwords:	PRACTICE – refusal of adjournment – notice of motion and affidavit sent to court on day before hearing – affidavit stated that defendant had received menacing text messages threatening him if he attended court – no attendance by defendant or anyone on his behalf – trial judge granted two short adjournments until the afternoon – notice of motion for adjournment then dismissed for want of prosecution – no evidence establishing a solicitor or barrister or agent could not appear – appeal dismissed
Legislation Cited:	Crimes Act 1900 (NSW), Division 3 of Part 7 Supreme Court Act 1970 (NSW), s 101 Uniform Civil Procedure Rules, rr 7.29, 8.2, 36.16, 51.9, 51.28, 51.29
Cases Cited:	ACES Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia (2014) 89 NSWLR 209; [2014] NSWCA 402 Maund v Crown in right of the State of New South Wales [2013] NSWCA 226 McGrath v Troy as administratrix of the estate of the Late Warren Terence Wade [2010] NSWSC 1470 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 Reznitsky v Director of Public Prosecutions (NSW) [2014] NSWCA 79
Texts Cited:	None
Category:	Principal judgment
Parties:	Phillip Aziz Soloman (Appellant) Robin Barry Savage (Respondent)
Representation:	Counsel: M Mando (Appellant) T Davie (Respondent) Solicitors: Edmond Khoury Solicitors (Appellant) Kennedy & Cooke Lawyers (Respondent)
File Number(s):	2017/387968
Publication restriction:	None
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: None Date of Decision: 27 November 2017 Before: Blackmore DCJ File Number(s): 2016/137741