Sanossian v Parisi & Associates Pty Ltd [2021] NSWSC 408

Sanossian v Parisi & Associates Pty Ltd [2021] NSWSC 408

The appeal was irregularly commenced in the Common Law Division under Part 50 when it should have been commenced in the Court of Appeal, but under s 51(1)(a) of the Supreme Court Act 1970 (NSW), the proceedings are well commenced and not incompetent, so the appropriate course is to remove the proceedings into the Court of Appeal under s 51(1)(b).

Jurisdiction
Australia
Judgment Date
21 April 2021
Procedural Posture
Appeal / Application to Dismiss Appeal as Incompetent; Removal to Court of Appeal
Outcome
First defendant's notice of motion dismissed; proceedings removed into Court of Appeal; each party to pay own costs
Legal Topics
['summary Dismissal' 'mode of Commencement of Appeal' 'irregularly Commenced Proceedings' 'removal to Court of Appeal']
['civil Procedure'] ['summary Dismissal' 'mode of Commencement of Appeal' 'irregularly Commenced Proceedings' 'removal to Court of Appeal']

Case Brief

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Procedural Posture

Appeal / Application to Dismiss Appeal as Incompetent; Removal to Court of Appeal

Legal Issues

  1. 1 ['Whether appeal from District Court judgment was incompetent because it was commenced by summons in the Common Law Division under Part 50 of the UCPR instead of by notice of appeal in the Court of Appeal under Part 51' 'Whether proceedings should be dismissed as incompetent or removed into the Court of Appeal' 'Whether the irregularity in commencement affects competence of the appeal']

Ratio Decidendi

The appeal was irregularly commenced in the Common Law Division under Part 50 when it should have been commenced in the Court of Appeal, but under s 51(1)(a) of the Supreme Court Act 1970 (NSW), the proceedings are well commenced and not incompetent, so the appropriate course is to remove the proceedings into the Court of Appeal under s 51(1)(b).

Court Disposition

First defendant's notice of motion dismissed; proceedings removed into Court of Appeal; each party to pay own costs

Orders

  • ['Under s 51(1)(b) of the Supreme Court Act 1970 (NSW), these proceedings are removed into the Court of Appeal.' "The first defendant's notice of motion is dismissed." "Each party is to pay his or its own costs of the first defendant's notice of motion." 'The proceedings are listed for directions before the...