Lemery Holdings Pty Limited v Andrew Aitken, Douglas McLachlan and Bruce Thorpe trading as Aitken, McLachlan Thorpe and Ors [2009] NSWSC 70

Lemery Holdings Pty Limited v Andrew Aitken, Douglas McLachlan and Bruce Thorpe trading as Aitken, McLachlan Thorpe and Ors [2009] NSWSC 70

Leave to appeal was refused because none of the seven grounds was sufficiently arguable. The transcript did not disclose excessive intervention, bias, denial of procedural fairness, or denial of natural justice; no adjournment application was pressed; the non-admission of Mr Sobbi's affidavit flowed from his unwillingness to give evidence or be cross-examined; the admitted evidence supported the Magistrate's findings; and no question of law under s.73(1) or arguable question of mixed fact and law under s.74(1) Local Courts Act 1982 was demonstrated.

Jurisdiction
Australia
Judgment Date
04 February 2009
Procedural Posture
Application for Leave to Appeal From a Civil Judgment in the General Division of the Local Court / Amended Summons Seeking Leave to Appeal; Notice of Motion by the Defendants for Dismissal for Want of Prosecution
Outcome
Leave to appeal refused; Amended Summons dismissed.
Legal Topics
['leave to Appeal From Local Court' 'natural Justice' 'procedural Fairness' 'adjournment' 'questions of Mixed Fact and Law' 'costs']
['practice and Procedure' 'civil Procedure'] ['leave to Appeal From Local Court' 'natural Justice' 'procedural Fairness' 'adjournment' 'questions of Mixed Fact and Law' 'costs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Leave to Appeal From a Civil Judgment in the General Division of the Local Court / Amended Summons Seeking Leave to Appeal; Notice of Motion by the Defendants for Dismissal for Want of Prosecution

Legal Issues

  1. 1 ['Whether the Plaintiff should be granted leave to appeal on grounds involving questions of mixed fact and law under s.74(1) Local Courts Act 1982.' 'Whether the Local Court hearing involved a denial of natural justice or procedural fairness.' "Whether the Magistrate's handling of the adjournment issue denied the Plaintiff natural justice." 'Whether the Magistrate erred regarding evidence about assignment of the retainer and tax invoices.' 'Whether there was an arguable error of law under s.73(1) Local Courts Act 1982.']

Ratio Decidendi

Leave to appeal was refused because none of the seven grounds was sufficiently arguable. The transcript did not disclose excessive intervention, bias, denial of procedural fairness, or denial of natural justice; no adjournment application was pressed; the non-admission of Mr Sobbi's affidavit flowed from his unwillingness to give evidence or be cross-examined; the admitted evidence supported the Magistrate's findings; and no question of law under s.73(1) or arguable question of mixed fact and law under s.74(1) Local Courts Act 1982 was demonstrated.

Court Disposition

Leave to appeal refused; Amended Summons dismissed.

Orders

  • ['Amended Summons filed on 14 November 2008 dismissed.' "Plaintiff is to pay Defendant's costs of the proceedings." 'Notice of Motion filed by the Defendant on 21 January 2009 dismissed. The Plaintiff is to pay the costs of that Motion.' 'The purported order made on 9 September 2008 transferring these proceedings to...