Watiwat v Dixon - [2018] NSWCA 48

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Watiwat v Dixon [2018] NSWCA 48
Hearing dates: 14 March 2018
Decision date: 14 March 2018
Before: Basten JA and Simpson JA
Decision:
(1) Dismiss the summons filed 19 December 2017 seeking leave to appeal from the judgment of Robb J given on 20 September 2017.
(2) Order that the applicant pay the respondents’ costs of the summons, assessed on the basis of their joint representation.
Catchwords: CIVIL PROCEDURE – application for leave to appeal – proposed appeal from decision regarding practice or procedure – where leave sought to appeal from dismissal of proceedings under Uniform Civil Procedure Rules 2005 (NSW), r 14.3 – whether issue of principle, question of general public importance, or more than merely arguable error raised – whether leave should be granted
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 13.4
Cases Cited: Be Financial Pty Ltd atf Be Financial Operations Trust v Das [2012] NSWCA 164
In Re the Will of FB Gilbert (Dec’d) (1946) 46 SR(NSW) 318
Watiwat v Dixon [2017] NSWSC 360
Category: Procedural and other rulings
Parties: Bienvenido Watiwat (Applicant)
Stephen Robert Dixon (First Respondent)
Winnie Leung (Second Respondent)
Carlos Vincenzo (Third Respondent)
Lion Financial Pty Ltd (Fourth Respondent)
Representation:
Counsel:
No appearance by Applicant
R Parsons (Respondents)
Solicitors:
Applicant self-represented
CLH Lawyers (Respondents)

File Number(s): 2017/313745
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Equity Division

Citation:

[2017] NSWSC 1242

Date of Decision:

20 September 2017

Before:

Robb J

File Number(s):

2016/310747

Judgment

THE COURT: In November 2010 trustees were appointed to the bankrupt estate of the applicant’s wife, Ms Bernadita M Badillo-Watiwat. Since then, assets have been sold, including a house jointly owned by the applicant, Bienvenido Watiwat, and his bankrupt wife.
In October 2016 the applicant commenced proceedings against the trustees and those involved in the administration of Mrs Watiwat’s bankruptcy, together with the petitioning creditor (Lion Finance Pty Ltd). On 20 September 2017 Robb J dismissed the proceedings commenced by the applicant, pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW). The applicant seeks leave to appeal from that judgment.
The applicant did not attend at the hearing of the application today. He indicated by telephone to the solicitor for the respondents that he had received no notice of the proceedings. As the court records indicate and as was pointed out to him by the respondents’ solicitor, he appeared before the Registrar on 5 February 2018 when the date was fixed for the hearing of the application, dealing only with the question of leave.
Mr Parsons appearing for the respondents seeks to have the matter dealt with today. Given the written submissions filed by both parties, the Court is in a position to do that. The matter should be disposed of without additional cost to the respondents.
The draft notice of appeal states: [1]

“There are material issues that need to be tested in court; Malicious Prosecution by the Bankruptcy Trustees…

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 Watiwat v Dixon

Details

AGLC: Watiwat v Dixon [2018] NSWCA 48
Case: [2018] NSWCA 48
Decision Date: 14 March 2018

CaseChat Overview and Summary

The applicant, Watiwat, sought leave to appeal from a decision of Robb J made on 20 September 2017, which had dismissed proceedings. The respondents were Dixon. The application for leave to appeal was brought under the Uniform Civil Procedure Rules 2005 (NSW), rule 14.3.

The primary legal issue before Basten and Simpson JJA was whether the applicant had raised a question of principle, a question of general public importance, or an error that was more than merely arguable, which would justify granting leave to appeal from a decision concerning practice or procedure.

The Court of Appeal dismissed the summons seeking leave to appeal. The orders made were that the summons filed on 19 December 2017 be dismissed, and that the applicant pay the respondents’ costs of the summons, assessed on the basis of their joint representation.

Orders

Orders of the court

(1) Dismiss the summons filed 19 December 2017 seeking leave to appeal from the judgment of Robb J given on 20 September 2017.

(2) Order that the applicant pay the respondents’ costs of the summons, assessed on the basis of their joint representation.

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:	Watiwat v Dixon [2018] NSWCA 48
Hearing dates:	14 March 2018
Decision date:	14 March 2018
Before:	Basten JA and Simpson JA
Decision:	(1) Dismiss the summons filed 19 December 2017 seeking leave to appeal from the judgment of Robb J given on 20 September 2017. (2) Order that the applicant pay the respondents’ costs of the summons, assessed on the basis of their joint representation.
Catchwords:	CIVIL PROCEDURE – application for leave to appeal – proposed appeal from decision regarding practice or procedure – where leave sought to appeal from dismissal of proceedings under Uniform Civil Procedure Rules 2005 (NSW), r 14.3 – whether issue of principle, question of general public importance, or more than merely arguable error raised – whether leave should be granted
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 13.4
Cases Cited:	Be Financial Pty Ltd atf Be Financial Operations Trust v Das [2012] NSWCA 164 In Re the Will of FB Gilbert (Dec’d) (1946) 46 SR(NSW) 318 Watiwat v Dixon [2017] NSWSC 360
Category:	Procedural and other rulings
Parties:	Bienvenido Watiwat (Applicant) Stephen Robert Dixon (First Respondent) Winnie Leung (Second Respondent) Carlos Vincenzo (Third Respondent) Lion Financial Pty Ltd (Fourth Respondent)
Representation:	Counsel: No appearance by Applicant R Parsons (Respondents) Solicitors: Applicant self-represented CLH Lawyers (Respondents)
File Number(s):	2017/313745
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Division Citation: [2017] NSWSC 1242 Date of Decision: 20 September 2017 Before: Robb J File Number(s): 2016/310747