Yuen v Casini - [2015] NSWSC 590

Supreme Court

New South Wales

Medium Neutral Citation: Yuen v Casini [2015] NSWSC 590
Hearing dates: 04 May 2015
Date of orders: 20 May 2015
Decision date: 20 May 2015
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:
(1) Leave to appeal is refused.
(2) The orders made by his Honour Magistrate Van Zuylen in the Penrith Local Court on 26 November 2014 are affirmed.
(3) The appellants are to pay the respondents’ costs as agreed or assessed on an ordinary basis.
Catchwords: LEAVE TO APPEAL FROM LOCAL COURT – Local Court Act 2007 (NSW) – appeal from an interlocutory decision – whether the Magistrate erred in law in maintaining second defendant as a party where no cause of action pleaded or foreshadowed against them – whether the Magistrate took into account irrelevant considerations in declining to dismiss the claim against the second defendant - whether the Magistrate erred in maintaining on foot an inadequately pleaded amended statement of claim – whether the Magistrate took into account irrelevant considerations in declining to strike out the amended statement of claim
Legislation Cited: Civil Procedure Act 2005 (NSW)
Local Court Act 2007 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Banque Commerciale SA En Liquidation v Akhill Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279
Be Financial Pty Ltd (as trustee for Be Financial Operations Trust) v Das [2012] NSWCA 164
Cassar v Hans Pet Constructions Pty Ltd [2008] NSWSC 1386
House v The King [1936] HCA 40; (1936) 55 CLR 499
Pi v Pierce and Attorney General for NSW [2015] NSWCA 118
Sayed v Deng [2012] NSWSC 851
Short v Burn [2012] NSWSC 695
Category: Principal judgment
Parties: Clement Yuen (First Appellant)
Samantha Edwards (Second Appellant)
Albert Casini (First Respondent)
Tina Casini (Second Respondent)
Representation:
Counsel:
D Villa (First and Second Appellants)
Solicitors:
Price & Company (First and Second Appellants)

File Number(s): 14/377455
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Local Court, Penrith

Jurisdiction:

General Division

Date of Decision:

26 November 2014

Before:

Van Zuylen LCM

File Number(s):

2014/239369

Judgment

HER HONOUR: The appellants seek leave to appeal the interlocutory decision made by his Honour Magistrate Van Zuylen in the Penrith Local Court on 26 November 2014. On that day, the Magistrate struck out the appellants’ two notices of motion and made directions.
By amended summons dated 13 March 2015, the appellants seek an order firstly, that leave be granted to appeal from the whole of the decision below; secondly, that the appeal be allowed; thirdly, that the orders made by the Local Court in proceedings 2014/239369 on 26 November 2014 be set aside; fourthly, that the second appellant be removed as a party in the proceedings in the Local Court; and finally, that the respondents’ amended statement of claim in the Local Court proceedings be struck out for:

(i) Failing to comply with Rule 14.7 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”);

(ii) Further and in 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 Yuen v Casini

Details

AGLC: Yuen v Casini [2015] NSWSC 590
Case: [2015] NSWSC 590
Decision Date: 20 May 2015

CaseChat Overview and Summary

In the case of Yuen v Casini, the plaintiff, Yuen, sought leave to appeal an interlocutory decision made by the Local Court. The plaintiff had originally brought a claim against two defendants, Casini and another party, for various breaches of contract and associated relief. The dispute involved allegations of non-payment and other contractual defaults. The Local Court had declined to dismiss the claim against the second defendant, despite the plaintiff's failure to plead or foreshadow any cause of action against them. Additionally, the court maintained the amended statement of claim, which was considered inadequately pleaded, and refused to strike it out. The plaintiff argued that the court erred in maintaining the second defendant as a party and in not striking out the amended statement of claim, claiming that the court had taken into account irrelevant considerations.

The legal issues before the court were whether the Magistrate had erred in law by keeping the second defendant as a party without a valid cause of action against them, and whether the Magistrate had considered irrelevant factors in declining to dismiss the second defendant and in not striking out the amended statement of claim. The plaintiff further argued that the amended statement of claim was inadequately pleaded, and the court's decision to maintain it was erroneous.

The court found that the Magistrate did not err in maintaining the second defendant as a party. The court held that there was sufficient cause for the plaintiff to have a claim against the second defendant, even if not explicitly pleaded. Regarding the amended statement of claim, the court concluded that it was not so defective as to warrant a strike-out and was sufficient for the purposes of the interlocutory decision. The court also found that no irrelevant considerations were taken into account by the Magistrate in making these decisions. Ultimately, the appeal was dismissed, and the plaintiff was not granted leave to appeal the Local Court's interlocutory decision.

Orders