Fordyce v Leung [2022] NSWCA 55

Fordyce v Leung [2022] NSWCA 55

The primary judge's refusal to set aside the judgment entered on filing of the costs certificate was not a final order and did not preclude Mr Fordyce from challenging the underlying costs assessment on statutory appeal. The application to set aside the judgment did not commence an 'action' within s 127 of the District Court Act 1973 (NSW); thus, appeal did not lie to the Court of Appeal. No denial of procedural fairness or bias was established; the claim for judicial review was dismissed on discretionary grounds due to the existence of an alternative appeal avenue. Costs followed the event, with an exception for costs of the judicial review application.

Parties
Appellant: Paul Fordyce; First Respondent: Claudia Leung as trustee for the estate of the Late Robert Ho; Second Respondent: Rhodium NSW Pty Ltd; Third Respondent: District Court of New South Wales
Jurisdiction
Australia
Judgment Date
12 April 2022
Procedural Posture
Application for Leave to Appeal and Judicial Review / Court of Appeal Judgment
Legal Topics
Bias Rule, Procedural Fairness, Judicial Review, Costs Assessment, Res Judicata, Finality of Orders
Administrative Law Civil Procedure Bias Rule Procedural Fairness Judicial Review Costs Assessment Res Judicata Finality of Orders

Case Brief

Summary, issues, holding and outcome

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Parties

Paul Fordyce

Appellant

Claudia Leung as trustee for the estate of the Late Robert Ho

First Respondent

Rhodium NSW Pty Ltd

Second Respondent

District Court of New South Wales

Third Respondent

Procedural Posture

Application for Leave to Appeal and Judicial Review / Court of Appeal Judgment

Legal Issues

  1. 1 Whether the primary judge's order was a final order precluding further appeal
  2. 2 Whether notice of motion commenced an 'action' under s 127 District Court Act 1973 (NSW)
  3. 3 Whether decision should be quashed for denial of procedural fairness or bias

Ratio Decidendi

The primary judge's refusal to set aside the judgment entered on filing of the costs certificate was not a final order and did not preclude Mr Fordyce from challenging the underlying costs assessment on statutory appeal. The application to set aside the judgment did not commence an 'action' within s 127 of the District Court Act 1973 (NSW); thus, appeal did not lie to the Court of Appeal. No denial of procedural fairness or bias was established; the claim for judicial review was dismissed on discretionary grounds due to the existence of an alternative appeal avenue. Costs followed the event, with an exception for costs of the judicial review application.