Hyde v Tabone [2018] NSWSC 1601

Hyde v Tabone [2018] NSWSC 1601

Grounds 1 to 5 raised, at best, questions of mixed law and fact and did not warrant leave because the Local Court was entitled to accept Mr Tabone's evidence that Mr Taylor's $20,000 payment was unrelated, to find that Mr Hyde had not proved payment, and to find that Mr Hyde was liable for restitution of the $20,000 and for the wrongly withheld $10,349.23 tax refund. Grounds 6 and 7 concerned an interlocutory adjournment refusal and leave was not warranted because the adjournment application was made late after Mr Tabone had closed his case, the amount in issue was relatively small compared with costs, and no miscarriage of discretion was shown. Ground 8 was not made out because no...

Jurisdiction
Australia
Judgment Date
23 October 2018
Procedural Posture
Appeal From the Local Court in Civil Proceedings / Supreme Court Determination of Summons Filed on 1 June 2018 Seeking Relief in Respect of the Local Court Judgment of 4 May 2018
Outcome
Leave to appeal refused on grounds 1 to 8; summons otherwise dismissed; plaintiff ordered to pay defendant's costs.
Legal Topics
['appeal From Local Court' 'leave to Appeal' 'questions of Law and Mixed Law and Fact' 'interlocutory Order Refusing Adjournment' 'money Had and Received' 'loan Agreement' 'tax Refund Retained by Tax Agent' 'adequacy of Reasons']
['civil Procedure' 'restitution' 'contract' 'taxation'] ['appeal From Local Court' 'leave to Appeal' 'questions of Law and Mixed Law and Fact' 'interlocutory Order Refusing Adjournment' 'money Had and Received' 'loan Agreement' 'tax Refund Retained by Tax Agent' 'adequacy of Reasons']

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Procedural Posture

Appeal From the Local Court in Civil Proceedings / Supreme Court Determination of Summons Filed on 1 June 2018 Seeking Relief in Respect of the Local Court Judgment of 4 May 2018

Legal Issues

  1. 1 ['Whether leave should be granted to appeal on grounds concerning findings about the $20,000 payment, the tax refund, the adjournment refusal and sufficiency of evidence.' 'Whether the Local Court erred in finding Mr Hyde liable to repay $20,000 by way of restitution despite a $20,000 payment by Mr Taylor to Mr Tabone on the eve of the hearing.' 'Whether the Local Court erred in finding Mr Hyde liable to pay the $10,349.23 tax refund to Mr Tabone.' "Whether the Local Court's refusal to adjourn the hearing so that Mr Taylor could give evidence involved appellable error." 'Whether the Local Court gave adequate reasons for its findings.']

Ratio Decidendi

Grounds 1 to 5 raised, at best, questions of mixed law and fact and did not warrant leave because the Local Court was entitled to accept Mr Tabone's evidence that Mr Taylor's $20,000 payment was unrelated, to find that Mr Hyde had not proved payment, and to find that Mr Hyde was liable for restitution of the $20,000 and for the wrongly withheld $10,349.23 tax refund. Grounds 6 and 7 concerned an interlocutory adjournment refusal and leave was not warranted because the adjournment application was made late after Mr Tabone had closed his case, the amount in issue was relatively small compared with costs, and no miscarriage of discretion was shown. Ground 8 was not made out because no...

Court Disposition

Leave to appeal refused on grounds 1 to 8; summons otherwise dismissed; plaintiff ordered to pay defendant's costs.

Orders

  • ['Refuse leave to the plaintiff to appeal on grounds 1, 2, 3, 4, 5, 6, 7 and 8.' 'Otherwise dismiss the summons filed on 1 June 2018.' "Order the plaintiff to pay the defendant's costs of the proceedings."]