Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Taouk v Ho [2019] NSWCA 156 Hearing dates: 4 June 2019 Decision date: 27 June 2019 Before: Gleeson JA at [1]
Emmett AJA at [59]Decision: Summons seeking leave to appeal is dismissed with costs.
Catchwords: APPEAL – leave to appeal – building and construction dispute – appeal from Local Court to Supreme Court on a question of law – primary judge found that respondent not bound by releases and bars to action in the settlement deed – where deed delivered to applicant’s solicitors – where applicant disclaimed deed without executing it – whether injustice to applicant in refusing leave to appeal Legislation Cited: Local Court Act 2007 (NSW), ss 39(1), 40(2)(c)
Supreme Court Act 1970 (NSW), s 101(2)(r)
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 50.11Cases Cited: Ansett Transport Industries (Operations) Pty Ltd v Comptroller of Stamps [1985] VR 70
Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986) 40 NSWLR 622
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Beesly v Hallwood Estates Limited [1961] Ch 105
Chief Commissioner of State Revenue v Smeaton Grange Holdings Pty Ltd [2017] NSWCA 184
Federal Commissioner of Taxation v Taylor (1929) 42 CLR 80
G R Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Mallot v Wilson [1903] 2 Ch 494
Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72
Mirzikinian v Tom & Bill Waterhouse Pty Ltd [2009] NSWCA 296
Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310
Naas (Lady) v Westminster Bank Ltd [1940] AC 366
Re Paradise Motor Co Ltd [1968] 2 All ER 625; [1968] 1 WLR 1125
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206
Segboer v A J Richardson Properties Pty Ltd [2012] NSWCA 253
Sinclair, Scott & Co v Naughton (1929) 43 CLR 310; [1929] HCA 34
Smeaton Grange Holdings Pty Ltd v Chief Commissioner of State Revenue [2016] NSWSC 1594
Wilson v Frost [1935] 35 SR (NSW) 521Category: Principal judgment Parties: Joseph Taouk (Applicant)
Yuen Min Ho (Respondent)Representation: Counsel:
Solicitors:
Mr I G Roberts SC / Mr R Wathukarage (Applicant)
Mr R Freeman (Respondent)
Gardner Ekes Lawyers (Applicant)
Scarfone & Co Solicitors (Respondent)
File Number(s): 2018/393487 Decision under appeal
- Court or tribunal:
- Supreme Court of New South Wales
- Jurisdiction:
- Civil
- Citation:
- [2018] NSWSC 1854
- Date of Decision:
- 6 December 2018
- Before:
- Johnson J
- File Number(s):
- 2018/110582
Judgment
-
GLEESON JA: Application is made by Mr Joseph Taouk for leave to appeal against orders made by Johnson J on 6 December 2018 dismissing with costs an appeal from a decision in the Local Court on 12 March 2018 in favour of Yuen Min Ho (Ms Ho): Taouk v Ho [2018] NSWSC 1854 (the Principal Judgment). On 14 December 2018,…
Continue reading Taouk v Ho
Sign in free to access the full text
Details
- AGLC
- Taouk v Ho [2019] NSWCA 156
- Case
- [2019] NSWCA 156
- Decision Date
CaseChat Overview and Summary
The appeal concerned a building and construction dispute between Taouk (applicant) and Ho (respondent). The applicant sought leave to appeal from a decision of the primary judge in the Supreme Court, which had affirmed a Local Court decision. The primary judge had found that the respondent was not bound by releases and bars to action contained within a settlement deed. This deed had been delivered to the applicant's solicitors, but the applicant had disclaimed it without executing it.
The central legal issue before the Court of Appeal was whether leave to appeal should be granted. This required the Court to consider whether there was an arguable case of injustice to the applicant in refusing leave to appeal, given the primary judge's findings regarding the settlement deed and the applicant's failure to execute it.
Gleeson JA and Emmett AJA dismissed the summons seeking leave to appeal. Their Honours reasoned that the applicant had not established an arguable case of injustice. The applicant's own conduct in disclaiming the deed without execution meant that they were not bound by its terms, including the releases and bars to action. Consequently, the primary judge's finding that the respondent was not bound by these provisions was upheld.
The summons seeking leave to appeal was dismissed with costs.
The central legal issue before the Court of Appeal was whether leave to appeal should be granted. This required the Court to consider whether there was an arguable case of injustice to the applicant in refusing leave to appeal, given the primary judge's findings regarding the settlement deed and the applicant's failure to execute it.
Gleeson JA and Emmett AJA dismissed the summons seeking leave to appeal. Their Honours reasoned that the applicant had not established an arguable case of injustice. The applicant's own conduct in disclaiming the deed without execution meant that they were not bound by its terms, including the releases and bars to action. Consequently, the primary judge's finding that the respondent was not bound by these provisions was upheld.
The summons seeking leave to appeal was dismissed with costs.
Orders
Orders of the court
Summons seeking leave to appeal is 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.