Hanna v Semaan as the Administrator of the Estate of the late Nelson Semaan [2018] NSWCATAP 21

Hanna v Semaan as the Administrator of the Estate of the late Nelson Semaan [2018] NSWCATAP 21

The Tribunal's substantive reasons amounted to a decision to make no order in respect of the claim against the late Mr N Semaan and thereby finalised that claim. In light of the words used, the context of the reasons, the death of Mr N Semaan, the absence of any application to substitute the Estate, and the importance of finality, the Tribunal was functus officio nearly two years later and had no power to make further orders. Leave to appeal out of time was refused because the delay was excessive, the explanation inadequate, the appellant and his representatives knew the relevant facts and decision, the Estate had been advertised for creditors and distributed, and no miscarriage of...

Jurisdiction
Australia
Judgment Date
17 January 2018
Procedural Posture
Appeal in Home Building Proceedings / Application for Leave to Appeal and Appeal From Refusal to Relist Proceeding; Leave Refused and Appeal Dismissed
Outcome
Leave to appeal is refused and the appeal is dismissed.
Legal Topics
['meaning of a Decision' 'functus Officio' 'leave to Appeal Out of Time' "substitution of Deceased Party's Estate" 'costs']
['practice and Procedure' 'home Building' 'administrative Law' 'deceased Estates' 'bankruptcy'] ['meaning of a Decision' 'functus Officio' 'leave to Appeal Out of Time' "substitution of Deceased Party's Estate" 'costs']

Case Brief

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Procedural Posture

Appeal in Home Building Proceedings / Application for Leave to Appeal and Appeal From Refusal to Relist Proceeding; Leave Refused and Appeal Dismissed

Legal Issues

  1. 1 ['Whether the Tribunal erred in holding itself functus officio and refusing to relist the matter to make an order against the Estate of the late Nelson Semaan.' "Whether the Tribunal's statement that no order was made in relation to Nelson Semaan was a decision finalising the proceedings against him." 'Whether leave should be granted to appeal out of time from the substantive decision making no order against Nelson Semaan or his Estate.' "Whether the NSW Trustee and Guardian or a legal personal representative had to be substituted after Nelson Semaan's death before an order could be made against the Estate."]

Ratio Decidendi

The Tribunal's substantive reasons amounted to a decision to make no order in respect of the claim against the late Mr N Semaan and thereby finalised that claim. In light of the words used, the context of the reasons, the death of Mr N Semaan, the absence of any application to substitute the Estate, and the importance of finality, the Tribunal was functus officio nearly two years later and had no power to make further orders. Leave to appeal out of time was refused because the delay was excessive, the explanation inadequate, the appellant and his representatives knew the relevant facts and decision, the Estate had been advertised for creditors and distributed, and no miscarriage of...

Court Disposition

Leave to appeal is refused and the appeal is dismissed.

Orders

  • ['Leave to appeal is refused and the appeal is dismissed.' 'The appellant is to pay the costs of Dali Semaan as the Administrator of the Estate of the late Nelson Semaan, as agreed or assessed.']