Girgis v Oueik [2018] NSWCA 314

Girgis v Oueik [2018] NSWCA 314

Leave to appeal was refused because Mr Girgis did not demonstrate any substantial reason warranting appellate review. The Judicial Commission complaint and the primary judge's failure to disclose or mention it did not provide an arguable objective basis for apprehended bias; the challenge to the 30% margin was inconsistent with the way the case was conducted at trial and disclosed no arguable error; no incontrovertible facts or uncontested testimony undermined the primary judge's rejection of Mr Girgis as a witness of truth or the findings concerning fraudulent credit card use, a false affidavit and lying under oath; and, given the small amount potentially affected and the costs already...

Jurisdiction
Australia
Judgment Date
14 December 2018
Procedural Posture
Civil Procedure Application for Leave to Appeal / Court of Appeal, on the Papers, From District Court Civil Judgment
Outcome
Application for leave to appeal dismissed with costs.
Legal Topics
['leave to Appeal' 'apprehended Bias' 'waiver of Recusal Objection' 'expert Evidence' 'quantum Meruit' 'credit Findings' 'fraud and Perjury Findings' 'finality in Small Claims']
['civil Procedure' 'contract Law' 'evidence'] ['leave to Appeal' 'apprehended Bias' 'waiver of Recusal Objection' 'expert Evidence' 'quantum Meruit' 'credit Findings' 'fraud and Perjury Findings' 'finality in Small Claims']

Case Brief

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Procedural Posture

Civil Procedure Application for Leave to Appeal / Court of Appeal, on the Papers, From District Court Civil Judgment

Legal Issues

  1. 1 ['Whether leave to appeal should be granted from the District Court judgment where the amount at issue was below the statutory threshold.' "Whether the primary judge's receipt of, and failure to disclose or refer to, the applicant's complaint to the Judicial Commission gave rise to an arguable apprehension of bias." 'Whether the primary judge arguably erred in admitting or relying on expert evidence about an industry standard margin of 30% in calculating quantum meruit.' "Whether incontrovertible facts or uncontested testimony demonstrated an arguable error in the primary judge's rejection of the applicant's evidence and findings concerning fraud, a false affidavit and lying under oath." 'Whether the small amount potentially affected by the quantum meruit calculation and the need for finality justified refusing leave.']

Ratio Decidendi

Leave to appeal was refused because Mr Girgis did not demonstrate any substantial reason warranting appellate review. The Judicial Commission complaint and the primary judge's failure to disclose or mention it did not provide an arguable objective basis for apprehended bias; the challenge to the 30% margin was inconsistent with the way the case was conducted at trial and disclosed no arguable error; no incontrovertible facts or uncontested testimony undermined the primary judge's rejection of Mr Girgis as a witness of truth or the findings concerning fraudulent credit card use, a false affidavit and lying under oath; and, given the small amount potentially affected and the costs already...

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • ['Application for leave to appeal dismissed with costs.']