Mohareb v Kelso (No 2) [2021] NSWCA 182

Mohareb v Kelso (No 2) [2021] NSWCA 182

No reasonable apprehension or actual bias was made out against either judge, and no good reason was shown to extend leave to appeal to the whole of Ierace J’s judgment including costs order. The applications for recusal and extension were rejected, and the orders clarified to reflect intended scope.

Parties
Applicant: Mr Nader Mohareb; First Respondent: Mr Alexander Edward Kelso; Second Respondent: Mr John Alexander Kelso; Third Respondent: Mr Roderick Gerrard Smith
Jurisdiction
Australia
Judgment Date
20 August 2021
Procedural Posture
Motion / Post Judgment Application for Variation and Judicial Recusal
Outcome
Applications for recusal and extension of leave dismissed, prior order amended for clarity
Legal Topics
Amending and Setting Aside Judgments, Recusal Applications, Costs Orders, Apprehended Bias, Actual Bias
Civil Procedure Amending and Setting Aside Judgments Recusal Applications Costs Orders Apprehended Bias Actual Bias

Case Brief

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Parties

Mr Nader Mohareb

Applicant

Mr Alexander Edward Kelso

First Respondent

Mr John Alexander Kelso

Second Respondent

Mr Roderick Gerrard Smith

Third Respondent

Procedural Posture

Motion / Post Judgment Application for Variation and Judicial Recusal

Legal Issues

  1. 1 Whether leave to appeal should be extended to the whole of Ierace J’s judgment including costs order
  2. 2 Whether there was actual or apprehended bias warranting recusal of judges

Ratio Decidendi

No reasonable apprehension or actual bias was made out against either judge, and no good reason was shown to extend leave to appeal to the whole of Ierace J’s judgment including costs order. The applications for recusal and extension were rejected, and the orders clarified to reflect intended scope.

Court Disposition

Applications for recusal and extension of leave dismissed, prior order amended for clarity

Orders

  • Reject the applications for the recusal of Macfarlan JA and McCallum JA.
  • Amend Order (1) made on 24 May 2021 by adding 'in relation to Mr Mohareb's claim against Mr Alexander Kelso' after the word 'issues'.