Sarina v Mackay [2021] NSWSC 269

Sarina v Mackay [2021] NSWSC 269

The appeal failed because grounds 1, 2 and 4 substantially challenged factual and credibility findings of the Magistrate and did not disclose appealable error of law or any constructive failure to exercise jurisdiction. The Magistrate understood and engaged with Sarina's case, gave extensive reasons for preferring Mackay's evidence about the Loan Agreement and the cross-claim, and any factual errors identified did not undermine the lawfulness of the decision. Ground 3 raised a question of law but failed because the Magistrate correctly stated and applied the burden of proof: Sarina bore the onus of proving his pleaded serious allegation of forgery, and the Magistrate was entitled to find...

Jurisdiction
Australia
Judgment Date
22 March 2021
Procedural Posture
Appeal From Local Court in a Contract Dispute / Principal Judgment on Further Amended Summons Filed 13 August 2020
Outcome
Appeal dismissed; further amended summons dismissed.
Legal Topics
['appeal From Local Court' 'questions of Law' 'questions of Fact' 'mixed Questions of Law and Fact' 'loan Agreement' 'onus and Standard of Proof' 'credibility Findings' 'forgery Allegation' 'cross Claim']
['civil Procedure' 'contract Law' 'evidence'] ['appeal From Local Court' 'questions of Law' 'questions of Fact' 'mixed Questions of Law and Fact' 'loan Agreement' 'onus and Standard of Proof' 'credibility Findings' 'forgery Allegation' 'cross Claim']

Case Brief

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Procedural Posture

Appeal From Local Court in a Contract Dispute / Principal Judgment on Further Amended Summons Filed 13 August 2020

Legal Issues

  1. 1 ['Whether the Magistrate erred in finding that the Loan Agreement produced by Mackay was the document marked up and signed by Sarina.' 'Whether the Magistrate erred in finding that the Loan Agreement represented the terms on which Mackay advanced $71,000 to Sarina, including interest.' 'Whether the Magistrate erred in finding that payments made by Sarina to or on behalf of Mackay were advanced to Robvic for the Gosford Property project.' 'Whether the Magistrate reversed or misapplied the onus and burden of proof in respect of the statement of cross-claim and defence.']

Ratio Decidendi

The appeal failed because grounds 1, 2 and 4 substantially challenged factual and credibility findings of the Magistrate and did not disclose appealable error of law or any constructive failure to exercise jurisdiction. The Magistrate understood and engaged with Sarina's case, gave extensive reasons for preferring Mackay's evidence about the Loan Agreement and the cross-claim, and any factual errors identified did not undermine the lawfulness of the decision. Ground 3 raised a question of law but failed because the Magistrate correctly stated and applied the burden of proof: Sarina bore the onus of proving his pleaded serious allegation of forgery, and the Magistrate was entitled to find...

Court Disposition

Appeal dismissed; further amended summons dismissed.

Orders

  • ['The further amended summons filed 13 August 2020 is dismissed.' "The plaintiff is to pay the defendant's costs on an ordinary basis."]