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Taouk v Ho

Taouk v Ho

Case [2018] NSWSC 1854 6 December 2018

Appeal

Costs

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Taouk v Ho [2018] NSWSC 1854
Hearing dates: 14 November 2018
Date of orders: 06 December 2018
Decision date: 06 December 2018
Jurisdiction: Common Law
Before: Johnson J
Decision:
1. The Amended Summons is dismissed.
2. Mr Taouk is to pay Ms Ho’s costs of the proceedings in this Court on the ordinary basis, with leave being granted to Ms Ho to make application for costs on a special basis by way of written submissions to be furnished to Johnson J’s Associate, and served upon the legal representatives for Mr Taouk by 4.00 pm on Monday, 10 December 2018.
3. In the event that Ms Ho makes application for a special costs order, Mr Taouk may respond to the application by written submissions furnished and served by 4.00 pm on Wednesday, 12 December 2018.

Catchwords: APPEAL - Local Court civil claim and judgment –judgment in favour of party in proceedings to recover money after settlement of proceedings - appeal on question of law – no error of law demonstrated – appeal dismissed with costs
Legislation Cited: Civil and Administrative Tribunal Act 2013
Civil Procedure Act 2005
Local Court Act 2007
Uniform Civil Procedure Rules 2005
Cases Cited: Australian and New Zealand Banking Group Limited v Frost Holdings Pty Limited [1989] VR 695
Chaina v Alvaro Homes Pty Limited [2008] NSWCA 353
connect.com.au Pty Limited v GoConnect Australia Pty Limited (2000) 178 ALR 348; [2000] FCA 1148
Currie v R [2013] NSWCCA 267
Director of Public Prosecutions v Illawarra Cashmart Pty Limited (2006) 67 NSWLR 402; [2006] NSWSC 343
Harrison v Schipp [2001] NSWCA 13
Hussain v Shahidulalam [2018] NSWSC 1742
Leichhardt Municipal Council v Green [2004] NSWCA 341
Mirzikinian v Tom & Bill Waterhouse Pty Limited [2009] NSWCA 296
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
R v PL (2009) 199 A Crim R 199; [2009] NSWCCA 256
Rose v Tunstall [2018] NSWCA 241
Rosniak v Government Insurance Office (1997) 41 NSWLR 608
White Constructions (ACT) Pty Limited (in liquidation) v White and Ors [2004] NSWSC 303
World Avenue Pty Limited v Tasunashima [2013] NSWSC 502
Texts Cited: ---
Category: Principal judgment
Parties: Joseph Taouk (Plaintiff)
Yuen Min Ho (Defendant)
Representation:
Counsel:
Ms M Dolenec (Plaintiff)
Mr R Freeman (Defendant)
Solicitors:
Gardner Ekes Lawyers (Plaintiff)
Scarfone & Co (Defendant)

File Number(s): 2018/110582
Publication restriction: ---

Judgment

JOHNSON J: By Amended Summons filed in Court on 14 November 2018, the Plaintiff, Joseph Taouk (“Mr Taouk”), appeals to this Court in relation to Local Court civil proceedings involving the Defendant, Yuen Min Ho.
On 12 March 2018, Magistrate Milledge gave judgment in favour of Ms Ho against Edifice Australia Pty Limited (“Edifice”) and Mr Taouk in the sum of $81,914.32 inclusive of interest. Judgment was given to Ms Ho against Edifice and Mr Taouk jointly and severally. In addition, her Honour ordered that Edifice and Mr Taouk pay Ms Ho’s costs up to…

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 Taouk v Ho

Details

AGLC: Taouk v Ho [2018] NSWSC 1854
Case: [2018] NSWSC 1854
Decision Date: 06 December 2018

CaseChat Overview and Summary

Taouk v Ho was an appeal heard by the NSW District Court, where the respondent, Taouk, sought to appeal a Local Court judgment that had been entered in favour of the appellant, Ho, in proceedings to recover money following a settlement of the proceedings. The Local Court had found that Taouk had failed to discharge the onus of proving the settlement agreement and had ordered that Ho recover the money claimed. The appeal focused on the question of whether there had been an error of law by the Local Court in entering the judgment for Ho.

The central legal issue before the court was whether there had been an error in the Local Court's finding that Taouk had failed to discharge the onus of proving the settlement agreement. The respondent argued that the Local Court had erred in concluding that the onus of proof rested on Taouk, rather than Ho, to prove the terms of the settlement. The court needed to determine whether the respondent's argument constituted a legal error that warranted the setting aside of the Local Court judgment.

The District Court found that the Local Court had correctly applied the law in determining that the onus of proving the settlement agreement rested with Taouk. The court concluded that the Local Court's finding that Taouk had failed to discharge the onus of proving the settlement agreement was not an error of law. The District Court held that the appeal did not demonstrate any error of law on the part of the Local Court and dismissed the appeal with costs in favour of Ho.

Orders