Melhem v Katter [2021] NSWCA 273

Melhem v Katter [2021] NSWCA 273

The District Court erred in concluding it was functus officio and closing the file, as it maintained jurisdiction to enforce the 7 August 2012 judgment for $400,000. The 2015 Court of Appeal prohibition order only restrained proceedings based on the 22 July 2013 invalid judgment, not the 2012 judgment. Examination orders may be made to enforce the 2012 judgment, and no notice was required for such orders. Both respondents are bound by the judgment. Leave to appeal should be granted, the appeal allowed, and the matter remitted to the District Court.

Parties
Applicant: Robert George Melhem; First Respondent: Joseph Katter; Second Respondent: Susan Vera Katter
Jurisdiction
Australia
Judgment Date
05 October 2021
Procedural Posture
Appeal / Application for Leave to Appeal and Appeal From District Court Orders
Outcome
Appeal allowed
Legal Topics
Enforcement of Judgments, Functus Officio, Felons (civil Proceedings) Act 1981 (nsw), Leave to Appeal, Extension of Time, Procedural Fairness
Civil Procedure Judgments and Orders Appeals Enforcement of Judgments Functus Officio Felons (civil Proceedings) Act 1981 (nsw) Leave to Appeal Extension of Time +1 more

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Parties

Robert George Melhem

Applicant

Joseph Katter

First Respondent

Susan Vera Katter

Second Respondent

Procedural Posture

Appeal / Application for Leave to Appeal and Appeal From District Court Orders

Legal Issues

  1. 1 Whether District Court was functus officio and lacking jurisdiction to make enforcement orders after final judgment
  2. 2 Construction of Court of Appeal's 2015 prohibition order and its scope
  3. 3 Application of Felons (Civil Proceedings) Act 1981 (NSW) to appeals in the Court of Appeal

Ratio Decidendi

The District Court erred in concluding it was functus officio and closing the file, as it maintained jurisdiction to enforce the 7 August 2012 judgment for $400,000. The 2015 Court of Appeal prohibition order only restrained proceedings based on the 22 July 2013 invalid judgment, not the 2012 judgment. Examination orders may be made to enforce the 2012 judgment, and no notice was required for such orders. Both respondents are bound by the judgment. Leave to appeal should be granted, the appeal allowed, and the matter remitted to the District Court.

Court Disposition

Appeal allowed

Orders

  • Grant leave to the applicant to file an Amended Summons Seeking Leave to Appeal.
  • Extend time to apply for leave to appeal to the date on which the Summons Seeking Leave to Appeal was filed.