Sarina v Mackay [2021] NSWCA 306

Sarina v Mackay [2021] NSWCA 306

Although Mr Sarina's appeal to the Court of Appeal lay as of right because the combined effect of Mr Mackay's claim and Mr Sarina's cross-claim put more than $100,000 in issue, the appeal failed. The Associate Judge correctly treated ground 4 as involving mixed fact and law rather than a pure question of law, and correctly refused leave under s 40 of the Local Court Act 2007 (NSW). The Magistrate made some factual errors, but they occurred within extensive reasoning and a matrix of credibility findings and evidence supporting the conclusion that Mr Sarina was lying about the payments and that the payments were not personal loans to Mr Mackay. No issue of principle, question of public...

Jurisdiction
Australia
Judgment Date
14 December 2021
Procedural Posture
Appeal and Summons Seeking Leave to Appeal / Court of Appeal From a Supreme Court Decision Dismissing an Appeal From Local Court Judgments
Outcome
Appeal dismissed; summons seeking leave to appeal dismissed; applicant ordered to pay respondent's costs in the Court of Appeal.
Legal Topics
['appeal From Local Court' 'leave to Appeal on Mixed Question of Fact and Law' 'appeal From Associate Judge' 'loan Agreement' 'credibility Findings' 'cross Claim']
['civil Procedure' 'appeals' 'contract'] ['appeal From Local Court' 'leave to Appeal on Mixed Question of Fact and Law' 'appeal From Associate Judge' 'loan Agreement' 'credibility Findings' 'cross Claim']

Case Brief

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Procedural Posture

Appeal and Summons Seeking Leave to Appeal / Court of Appeal From a Supreme Court Decision Dismissing an Appeal From Local Court Judgments

Legal Issues

  1. 1 ["Whether Mr Sarina's further appeal to the Court of Appeal lay as of right or required leave." 'Whether the Associate Judge erred in treating ground 4 of the Supreme Court appeal as involving mixed fact and law rather than a pure question of law.' 'Whether the Associate Judge erred in refusing leave under s 40 of the Local Court Act 2007 (NSW) in respect of ground 4.' 'Whether factual errors by the Magistrate gave rise to an injustice more than merely arguable warranting leave to appeal.']

Ratio Decidendi

Although Mr Sarina's appeal to the Court of Appeal lay as of right because the combined effect of Mr Mackay's claim and Mr Sarina's cross-claim put more than $100,000 in issue, the appeal failed. The Associate Judge correctly treated ground 4 as involving mixed fact and law rather than a pure question of law, and correctly refused leave under s 40 of the Local Court Act 2007 (NSW). The Magistrate made some factual errors, but they occurred within extensive reasoning and a matrix of credibility findings and evidence supporting the conclusion that Mr Sarina was lying about the payments and that the payments were not personal loans to Mr Mackay. No issue of principle, question of public...

Court Disposition

Appeal dismissed; summons seeking leave to appeal dismissed; applicant ordered to pay respondent's costs in the Court of Appeal.

Orders

  • ['Notice of appeal filed 19 October 2021 dismissed.' 'Summons seeking leave to appeal filed 22 June 2021 dismissed.' "Mr Sarina to pay Mr Mackay's costs of the proceedings in this Court."]