Rashid v Smar Pty Ltd

Supreme Court of NSW|2013-11-18|Before: Beech-Jones J

EX TEMPORE Judgment 1The plaintiff, Mr Harunur Rashid, appeals and, in the alternative, seeks leave to appeal from two judgments of the Local Court. The first judgment was entered on 6 March 2013 following a hearing on that day conducted in his absence ("the first hearing"). The Court entered judgment against him for $91,096.14 together with interest and costs in favour of Smar Pty Ltd ("Smar"). The second judgment was entered on 11 April 2013 following a hearing on that day which he attended ("the second hearing"). The Court dismissed the notice of motion that Mr Rashid filed seeking to set aside the first judgment. The Court also ordered him to pay Smar's costs of that motion on an indemnity basis. 2An appeal to this Court from the Local Court is governed by ss 39 to 41 of the Local Court Act 2007 which relevantly provide: "39 Appeals as of right (1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law. ... 40 Appeals requiring leave (1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court on a ground that involves a question of mixed law and fact may appeal to the Supreme Court but only by leave of the Supreme Court. (2) A party to proceedings before the Court sitting in its General Division who is dissatisfied with any of the following judgments or orders of the Court may appeal to the Supreme Court, but only by leave of the Supreme Court: (a) an interlocutory judgment or order, (b) a judgment or order made with the consent of the parties, (c) an order as to costs. 41 Determination of appeals (1) The Supreme Court may determine an appeal made under section 39 (1) or 40: (a) by varying the terms of the judgment or order, or (b) by setting aside the judgment or order, or (c) by setting aside the judgment or order and remitting the matter to the Local Court for determination in accordance with the Supreme Court's directions, or (d) by dismissing the appeal. ..." 3I address whether the judgments appealed from are interlocutory and thus require a grant of leave under s 40(2)(a) below. 4This appeal has a somewhat unfortunate procedural history, with Mr Rashid having appeared for himself for a period and obtained the benefit of a number of adjournments. Eventually Mr Rashid obtained legal representation. When that finally occurred all of the necessary procedural steps were undertaken with commendable efficiency. The matter was able to be set down for hearing within two weeks of him retaining counsel.

Evidentiary Ruling 5At the hearing of the appeal, counsel for Mr Rashid, Mr Salama, sought to read various affidavits from his client concerning events both before and at the time of the first and second hearings. Counsel for Smar, Mr Jewell, took objection to this material. It is appropriate to record the basis upon which some of the contested material was allowed. 6The evidence can be conveniently divided into two categories. First, some of the affidavit material addressed the course of the proceedings in the Local Court. This material was relevant for the purpose of establishing what material was before the Local Court at the time of both hearings and assisting in ascertaining whether an error of law is established. The material was also relevant for so much of Mr Rashid's case as complained that he was denied natural justice in that the material is capable of demonstrating whether or not he had an adequate opportunity to put his case. 7Second, some of the material constituted Mr Rashid's explanation of the circumstances surrounding his dispute with Smar. Ordinarily I would reject this material outright. In Lesley Swan v The Owners - Strata Plan 32735 [2013] NSWSC 1635 at [70] to [74] I concluded that, on an appeal to the Local Court on a question of law, this Court cannot make findings of fact in its own right even if an error of law is demonstrated and irrespective of s 75A of the Supreme Court Act 1970. Thus ordinarily material of the kind sought to be read and tendered would not be relevant to any "fact in issue" in this appeal, as generally there are no facts in issue other than perhaps what material was placed before the Local Court when it made its judgment. 8However, in light of Mr Rashid's allegation that a breach of natural justice occurred I receive this evidence on the limited basis that, if Mr Rashid had had the opportunity to address the Local Court which he says he was denied, then this material constitutes what he would have said. I made an order under s 136 of the Evidence Act 1995 restricting the use that could be made of this material. 9It follows from the limited nature of this Court's role on an appeal and the limited basis upon which this material was received that I have not made any findings as to the veracity of the material put forward in Mr Rashid's affidavit concerning the circumstances of his dispute with Smar.

The First Hearing 10On 13 August 2012 Smar filed a statement of claim naming Mr Rashid as a defendant. It pleaded that he was formerly a director of Smar. It sought recovery of $81,096.14 which was said to be the "cost of goods paid for by [Smar] and converted by [Mr Rashid]" to his own use in 2008. 11On 14 September 2012 Mr Rashid filed a defence. It was written in English, but unfortunately it was something of a ramble. He alleged that he had previously conducted a business of importing frozen fish from Myanmar and Bangladesh but stopped because of ill health. He claimed that he had been approached by the other directors of Smar. One of the directors said to him, "[w]e are interested to share in the goodwill of your business". He described a convoluted set of resolutions that appeared to involve him and the other directors investing in Smar. He accepted that the Smar funds were used by his "company" "Harun & Sons" to purchase fish. He did not state what had happened to the fish or the proceeds of their sale, but he claimed that he was owed money by Smar or at least some of its directors. 12The next step in the proceedings appears to have been that on 31 January 2013 Mr Rashid swore and served a detailed affidavit. As I will explain this affidavit was before the Presiding Magistrate at the second hearing. The affidavit was written in English. It provided a reasonably coherent narrative of Mr Rashid's version of his dealings with the other directors of Smar, although, again, the precise nature of their arrangements was still unclear. 13The affidavit included a litany of complaints against those directors, which do not appear to be the subject of any cross-claim. In relation to the purchase of the fish his affidavit stated that the board of Smar had agreed to fund the purchase and to do so through his company or business "Harun & Sons". In relation to Smar's claim to recover either the cost of the fish or the proceeds of the sale of the fish, Mr Rashid stated as follows: "The amount that was claimed to be used by myself in my business actually used to transfer overseas supplier to buy Fish and transfer was made from SMAR Pty Ltd fund with the consent of the Board and its members. As per the resolution any two member of a board can authorize withdrawal or transfer. In all four occasion fund transfer was authorized by the two Directors of SMAR Pty Ltd. The money was deemed as investment by the Company on its Fish business and transaction made from its fund needs to be treated as transfer by SMAR Pty Ltd." 14On 6 February 2013 Smar filed two affidavits, each one from a director. These affidavits also set out a history of Smar's involvement with Mr Rashid. Although the history they provided was very different to what Mr Rashid had stated, there were similarities. One of the directors recounted a discussion with Mr Rashid in September 2007 in which the then directors and Mr Rashid had agreed, inter alia, to put funds into Smar and to use it to import fish. This director then recounts the funding of the fish purchased by Mr Rashid using Smar funds. The director does not suggest that this was done without the knowledge of the other directors. The affidavit then recounts that the deponent was advised by someone other than Mr Rashid that the fish had been imported in the name of Harun & Sons. 15Of some significance are two conversations recounted by the director. In one of them the director states that he had a conversation with Mr Rashid which included the following exchange: Director: "How's the fish sales going?" Mr Rashid: "Really well. I'm selling lots of fish. We'll all get a lot of profit." Director: "Let's see the figures." 16The director then recounted Mr Rashid producing a number of supply books which were said to be illegible. The director states that Mr Rashid had said that he had sold about $87,000 in fish and that he, the director, asked Mr Rashid, "Where is the money?" The director recounted Mr Rashid saying, "When it is all sold, I'll bring the money and everyone will have a big surprise. I need a bit more time. You put a little in and it will come out triple fold." 17The second conversation that the director recounts is said to have occurred much later. It no doubt reflects the souring relationship between Smar and Mr Rashid. In that conversation the director says that he said to Mr Rashid, "[l]et's resolve this issue of the money that SMAR is owed from the fish sales". According to the director, Mr Rashid said: "I'm not interested in talking. There is nothing to resolve. Your fish is all gone." 18These conversations do not suggest that Mr Rashid "converted" fish belonging to Smar for his own use as appears to have been alleged by paragraph 3 of the statement of claim. Instead these conversations reveal that the complaint was that, having used Smar funds to purchase fish, Mr Rashid or his company did not then account to Smar for the proceeds of the sale of the fish or at least the profits from the sale of the fish. 19On 4 February 2013 Mr Rashid filed a document entitled "Case Summary". He described Smar's case as being "totally unacceptable". In that document he claimed, inter alia, that he had agreed to participate in the transaction with Smar's directors: "[o]n condition that each partner would deposit to the joint account a definite amount of money and gradually my business Harun & Sons and the lease of the butchery will be transferred to SMAR'S name." 20This reflects an allegation found in other documents filed on behalf of Mr Rashid, including his affidavit. It appears to reflect a contention that overall what was contemplated was some large joint venture involving Mr Rashid's fish importation business and a butchery. 21On 12 February 2013 the proceedings were set down for hearing on 6 March 2013. Mr Rashid signed a form indicating that he was aware of that fact. On 1 March 2013 the solicitor for Smar spoke to Mr Rashid and advised him that he, that is Mr Rashid, needed to arrange an interpreter. Mr Rashid appears to have disputed that he was obligated to do so. Later the solicitor confirmed with the Local Court that Mr Rashid was required to do so. 22On 4 March 2013 Mr Rashid wrote to the Local Court and copied his correspondence to the solicitor for Smar. Mr Rashid requested a "rescheduling" of the hearing listed on 6 March 2013. He claimed that one of his witnesses had gone overseas and another was sick. 23As noted the matter was listed for hearing on 6 March 2013. Mr Rashid did not attend. No transcript of the first hearing or any reasons given by the Court for the first judgment is available. As stated, the Local Court entered judgment for a large amount together with the interest and Court costs. I was advised by counsel for Smar, Mr Jewell, that the affidavits from the directors of Smar, that I have referred to, were read on that occasion.

The Second Hearing 24On 12 March 2013 Mr Rashid filed a notice of motion which sought "an annulment" of the orders made on 6 March 2013. The notice of motion was treated as an application to set aside the first judgment pursuant to the power conferred by the Uniform Civil Procedure Rules 2005 ("UCPR"), r 36.16. 25In support of his notice of motion Mr Rashid filed an affidavit which annexed his letter of 4 March 2013. In the body of his affidavit he stated that he had a chronic illness "and needed to be in bed rest from 5 March 2013". He said it was for that reason he could not attend on 6 March 203. He annexed a medical certificate to his affidavit. 26Mr Rashid's motion was listed for hearing before the Local Court on 11 April 2013. It was heard by a different magistrate to the magistrate who had conducted the first hearing. At the second hearing Smar's counsel filed written submissions contending, inter alia, that Mr Rashid's reasons for not attending the first hearing on 6 March 2013 were not bona fides. The submission pointed to various inadequacies in the medical certificate provided by Mr Rashid and noted that there was no reference to ill health of his letter of 4 March 2013. The submissions also contended that Mr Rashid's pleading and his "unread affidavit material" did not disclose a "triable issue". 27Mr Rashid's notice of motion was called on for hearing sometime in the morning of 11 April 2013. The transcript records that Mr Rashid advised the Court at the outset of his difficulties in communicating in English. He indicated that his son would assist him as an interpreter. His son was fifteen years of age. Counsel for Smar then outlined the background to the notice of motion and his client's objections to it. His Honour then adjourned the matter until after lunch to allow Mr Rashid an opportunity to consider the material that had been provided by Smar's counsel. 28When the matter resumed, the focus of the hearing became whether Mr Rashid had any defence to Smar's claim. At some point Mr Rashid's son referred his Honour to the case summary and Mr Rashid's affidavit sworn 31 January 2013. Counsel for Smar submitted that Mr Rashid had no defence to his client's claim because Mr Rashid had admitted receipt of the funds to purchase the fish. The following exchanges then occurred: "HIS HONOUR: What I understand he says is that he was a director of the plaintiff. The plaintiff agreed to the expenditure of the money and therefore the operation relates to the plaintiff. It is not as if Mr Rashid is a person who is acting outside the operation of the company. [COUNSEL FOR SMAR]: No, in this respect, so that's quite right. The money went from the plaintiff to overseas suppliers for fish and then the fish was returned to a company that Mr Rashid owns. And he doesn't dispute any of that and that's the claim. You Honour, may I just briefly take you to - HIS HONOUR: No, you may not because it's just getting a bit too difficult at the moment. Mr Rashid, if you want to continue with this you do need to get a lawyer to do it for you. If you are not going to get a lawyer to do it for you it is going to be extremely difficult for you to present your case. INTERPRETER: Your Honour, my father in the affidavit has given the documents and the details. HIS HONOUR: He might think he has but because he doesn't have an understanding of the law and its processes he has not presented the matter in a way in which the Court can readily deal with and take into account his allegations. In para 7 you say that the board of SMAR made a decision to order fish from certain persons and payment was made to the suppliers from moneys of SMAR. The order was confirmed and consigned to Harun(?) & Sons. It is that money which is the subject of the claim, you understand that. At para 27 you have said that the amount claimed was used to transfer overseas supplier to buy fish and transfer was made from SMAR with the consent of the board and its members. 'The money was deemed as an investment by the company on its fish business and the transaction was made from its funds needs to be treated as a transfer by SMAR Pty Ltd.' Is this amount of money which is the subject of the claim, you don't say in your affidavit that the money has been returned to SMAR. [MR RASHID]: No, because this money - we have a business. This money I did not borrow from SMAR Pty Ltd and I'm one of the director of SMAR. I made the - I made the - directors for their use my name and business the importation and I -" 29The references to "para 7" and "para 27" in this exchange were to the passages from Mr Rashid's affidavit of 31 January 2013 that I have already referred to (at [13]). After this exchange, his Honour then questioned Mr Rashid closely about what happened to the proceeds of the sale of the fish. Mr Rashid sought to explain that as follows: "The - give 81,000 and importing the fish is 120,000 and total cost is 200,000/203,000 and they're and in (not transcribable) is 349,000. Out of 349,000 they're paid 114,000, rest of my money and it was decided in board meeting they will contribute equal - equally then the (not transcribable) will be in the name of SMAR and Harun & Sons and SMAR Pty Ltd because fish ..." Later Mr Rashid referred to his "imported cost had been 200". 30His Honour continued to question Mr Rashid. Eventually his Honour announced he was refusing the application and stated as follows: "I am not going to grant your application to set aside the ex parte judgment of Magistrate Grogan because I am satisfied that you have no case based on information which you have provided to me which indicates that money was obtained from SMAR for Harun & Sons to purchase fish, fish was purchased and sold by Harun & Sons and the money was not returned to SMAR Pty Ltd. I can understand from what you are saying that the company from your point of view has not been run properly and there may be a lot of various allegations about the manner in which the company has been conducted. Nevertheless, there is no affidavit evidence or other information that you have put forward which shows that you have a case against the claim." 31After dismissing the application his Honour ordered indemnity costs against Mr Rashid. 32Thus the Presiding Magistrate did not refuse Mr Rashid's notice of motion seeking to set aside the first judgment, because his Honour was unsatisfied with Mr Rashid's explanation for his non-attendance on 6 March 2013. Instead, it was dismissed because his Honour was satisfied that Mr Rashid had "no case based on the information" that Mr Rashid had provided. This "information" included Mr Rashid's affidavit of 31 January 2013. In circumstances where his Honour did not address, much less resolve, any factual dispute, this in effect means that his Honour was satisfied that Mr Rashid's claims, taken at their highest, did not raise a triable issue in respect of Smar's claim.

Challenge to the First Judgment 33It seems apparent from the materials that, in the absence of Mr Rashid on 6 March 2013, the Local Court proceeded to hear Smar's case in accordance with UCPR 29.7(2)(a). Although there is and was a power in the Local Court to set aside such a judgment, in my view the orders made on 6 March 2013 still constitute a final judgment and thus leave to appeal is not required. Instead, Mr Rashid has a right of appeal on a question of law pursuant to s 39(1) of the Local Court Act. 34Nevertheless, Mr Salama only faintly pressed Mr Rashid's challenge to the first judgment. As stated, no transcript of the first hearing was available. There was no application before me for an adjournment in order to obtain that transcript. Thus, there is no basis for concluding that the Presiding Magistrate was in error in proceeding in Mr Rashid's absence to enter the first judgment. Mr Rashid's letter of 4 March 2013 addressed to the Court did not advise the Court that he would not be attending at the scheduled date for the hearing. There was no basis upon which his Honour could have concluded that Mr Rashid was too ill to attend on that day, assuming that was the case. In these circumstances I am not persuaded that any error of law has been established in relation to the first judgment.

The Second Judgment - Natural Justice 35At the second hearing the Presiding Magistrate was asked to consider the exercise of the power conferred by UCPR 36.16 which relevantly provided: "Further power to set aside or vary judgment or order (1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order. (2) The court may set aside or vary a judgment or order after it has been entered if: (a) it is a default judgment (other than a default judgment given in open court), or (b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or (c) in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order. (3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it: (a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or (b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief. (3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered. (3B) Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered. (3C) Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B). (4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order." 36It was common ground that his Honour had power to set aside the first judgment, even though orders had been entered. The first judgment had clearly been given in Mr Rashid's absence and thus the power conferred by UCPR 36.16(2) had arisen (UCPR 36.16(2)(b)). Further, as the application to set aside the first judgment had been filed within fourteen days of the orders being entered, it followed that the power conferred by UCPR 36.16(1) had also arisen (see UCPR 36.16(3A)). It was also common ground before me that two factors highly relevant to the exercise of the powers conferred by UCPR 36.16 in this case were the reasons for Mr Rashid's non-attendance on 6 March 2013 and the relative strengths or otherwise of Mr Rashid's defence to Smar's claim. 37Although it may have the effect of finally determining a party's rights, a refusal to exercise the power conferred by either of UCPR 36.16(1) or (2) is clearly an interlocutory order and thus leave to appeal is required pursuant to s 40(2) of the Local Court Act. I addressed some of the factors concerning whether to grant leave to appeal in Sayed v Deng [2012] NSWSC 851 at [29] and [34]. In this case two factors warranting a grant of leave to appeal are the fact that, if undisturbed, the dismissal of Mr Rashid's notice of motion will have the effect of finally determining his rights and the fact that a substantial amount is in dispute. Nevertheless, it is also necessary to consider the strength of the grounds of appeal. To that I will now turn. 38Mr Salama contended there were two errors of law on the part of his Honour in refusing Mr Rashid's notice of motion. First, he contended that his client was denied natural justice. For the present I will assume this is a complaint that can be agitated in an appeal under ss 39(1) and 40(2) of the Local Court Act. (If it could not then I would simply treat this aspect of the application as invoking the supervisory jurisdiction of the Supreme Court confirmed by s 69 of the Supreme Court Act 1970.) 39Mr Salama contended that a number of factors in combination meant that his client was not given a proper opportunity to be heard on 11 April 2013. He pointed to his client's language difficulties, which he submits were evident from the transcript. He submits that these difficulties were not overcome by Mr Rashid having the assistance of his son. He submitted that it was self evident that the Presiding Magistrate was having difficulty in understanding what Mr Rashid was putting to him about his defence. Mr Salama pointed to the further explanation that Mr Rashid was able to give when he obtained legal representation on the appeal. As a result of that he was able to provide a detailed narrative as set out in the affidavits read on the appeal. Mr Salama submitted that, given that his Honour repeatedly expressed that he was having difficulty in understanding what Mr Rashid was putting and the fact that it was the first return date of Mr Rashid's notice of motion, it was incumbent upon his Honour to unilaterally adjourn the motion to give Mr Rashid a further opportunity to obtain legal representation. 40It was accepted by both counsel that the relevant question was whether Mr Rashid was proffered a reasonable opportunity to be heard on his notice of motion. This needs to be addressed by considering the totality of the opportunity the party has had to put their case. It also has to be considered in a context where generally a court cannot compel a party to obtain legal representation or obtain it for them. Further, at least in civil cases there is not some generally applicable rule binding on the Local Court that requires it to fund the provision of an interpreter to assist a party. 41In this case, prior to 11 April 2013 Mr Rashid had ample opportunity to obtain legal representation. He was clearly an intelligent man, even if his command of English was not great. He knew that Smar had obtained legal representation. He regularly communicated with those representatives. The proceedings had been on foot for a considerable period. In addition, Mr Rashid had been able to procure material setting out his case in writing in acceptable English. He had been given an opportunity to provide that material to the Court. Thus, as I have stated he had filed and served a "case summary" and a detailed affidavit being the affidavit sworn on 31 January 2013. As stated, on 11 April 2013 the Presiding Magistrate was referred to this material. The material that was produced in this Court on his behalf was not in fact significantly different to that material. 42In these circumstances, I do not consider that Mr Rashid was denied a reasonable opportunity to be heard on 11 April 2013, even though his English was poor. He had numerous opportunities to obtain legal representation prior to that. He had been told that the Court would not pay for an interpreter and he had the opportunity to have one arranged for himself. He was given the opportunity to put material in writing. He availed himself of that opportunity and did so by putting detailed material written in cogent English before the Court. 43Mr Salama also pointed to some of the exchanges between the Presiding Magistrate and Mr Rashid on 11 April 2013 as possibly indicating that Mr Rashid was cut off when trying to address his Honour concerning the viability of his defence. However, Mr Salama frankly conceded that as he was not present at the hearing, it is difficult to gauge such matters. In any event, I do not read the transcript of the Local Court in that way. Instead, I read the parts of the transcript that Mr Salama referred to as the Presiding Magistrate attempting to bring some focus to the matter and isolate whether there was a triable issue in respect of Smar's claim. Accordingly, I am not satisfied there was a failure to afford natural justice to Mr Rashid in respect of the second judgment. I would not grant leave to appeal in respect of this complaint.

Second Judgment - Triable Issue 44Mr Salama's second contention was that in dismissing Mr Rashid's notice of motion on the basis there was no triable issue, his Honour erred in law. He contended that, properly analysed, the material in fact put forward on behalf of Mr Rashid did raise a triable issue in respect of Smar's claim. 45I have already described Smar's pleaded case. It sought recovery of an amount for the cost of goods paid for by Smar, but said to have been converted by Mr Rashid. However, that allegation was not borne out by the affidavits relied upon by Smar. Instead, they appear to accept that it was agreed that Mr Rashid would use Smar funds to buy fish in the name of Harun & Sons and then sell them. As stated, the deponents' complaint appears to be that Mr Rashid did not account to Smar for either the proceeds of the sale or the profits of the sale. Although he disagreed with some of the background detail, in broad terms Mr Rashid appeared to accept this description of the nature of the relationship between the parties. Thus, in his affidavit, he referred to there being an "investment" by Smar. Further, he told the Presiding Magistrate that he did not "borrow" the money from Smar. Instead, however, Mr Rashid, albeit in something of a garbled fashion, denied that he had made any profits from the sale of the fish because of various costs he said he had incurred, either in connection with the importation, storage and sale of the fish, or by reason of various other matters concerning the general business of Smar. 46In his reasons for refusing the application, his Honour referred to "that money [being] obtained by Smar from Harun & Sons to purchase fish. Fish was purchased and sold by Harun & Sons and the money was not returned to Smar". The reference to "that money" appears to be a reference to the funds provided by Smar, which was the money sued for in the statement of claim. However, it is not clear what his Honour's reference to "that money" was. The statement of claim pleads that what was required to be returned to Smar was the money originally provided by Smar. However, both sets of affidavits were inconsistent with that suggestion. It may be that the reference to "the money" was a reference to the proceeds of the sale or the profits from the sale of the fish, however those proceeds and profits were unquantified. Mr Rashid had provided some material to raise a triable issue as to whether there was any money owed in respect of those funds. Thus, on either approach to construing his Honour's reasons his Honour erred. 47If his Honour had meant to conclude that the requirement of Mr Rashid to return money was the money that was used to fund the purchase of the fish, then that conclusion was inconsistent with what appeared to be the joint position of both sets of deponents as to the nature of the transaction that had been entered into. If his Honour's reference to "[the] money" that needed to be returned was a reference to the proceeds of the sale of the fish or the profits from the sale of the fish, then the difficulty was that that amount had not been quantified and Mr Rashid had provided some material to the effect that there were no such profits. Accordingly, I am satisfied that in finding, in effect, that there was no triable issue, his Honour erred. Further, a finding that the matters raised by the party, even if accepted, does not raise a triable issue is, in my view, clearly a conclusion of law and not of fact. Accordingly, I consider that his Honour erred in law. 48Given that conclusion and the matters noted concerning the size of the judgment and the effect of the dismissal of Mr Rashid's notice of motion on his rights, I consider it is appropriate to grant leave to appeal from the second judgment. I would also allow the appeal from that judgment.

Disposition 49It follows that I will dismiss the appeal against the first judgment and uphold the appeal against the second judgment. The effect of my orders will be that it will be necessary for the Local Court to re-hear Mr Rashid's notice of motion to set aside the first judgment. The dismissal of the appeal from the first judgment does not affect the power of the Local Court to set that judgment aside in the exercise of the powers conferred by UCPR 39.16 if good cause is shown. That said, nothing in this judgment is to be taken as a determination as to what the outcome of that re-hearing should be. 50Accordingly, the Court orders that: (1)The appeal from the judgment of the Local Court dated 6 March 2013 in case number 2012/00250935 be dismissed. (2)There be a grant of leave to appeal from the judgment of the Local Court dated 11 April 2013 in case number 2012/00250935 dismissing the plaintiff's notice of motion filed 12 March 2013. (3)The appeal from the judgment of the Local Court dated 11 April 2013 in case number 2012/00250935 be allowed. (4)The orders made by the Local Court on 11 April 2013 in case number 2012/00250935 dismissing the plaintiff's notice of motion filed 12 March 2013 and ordering the plaintiff to pay the defendant's costs on an indemnity basis be set aside. (5)There be remitted to the Local Court for determination the hearing of the plaintiff's notice of motion filed 12 March 2013 in case number 2012/00250935. (6)The proceedings be otherwise dismissed. [The parties addressed on costs.] 51Having just given judgment I then heard the parties on the question of costs. The question of costs is somewhat difficult given the unfortunate history that I alluded to at the commencement of this judgment. Prior to the engagement of lawyers by Mr Rashid there were numerous adjournments. It was not until he engaged lawyers that the matter progressed at all. It seems to me that until that time Smar was put to undue expense and its costs were wasted. I can see no good reason to deny Smar of its costs of the appeal up until 28 October 2013. 52From that point Mr Rashid then engaged counsel and solicitors, who prepared the matter with commendable speed. The necessity to get the matter on meant that a very truncated timetable was put in place. Thus, for example, Mr Jewell only received the plaintiff's submissions and material late last week and had a short time to respond. It was not until they saw that material that they had any real opportunity to consider the nature of the case being put forward on behalf of Mr Rashid. Further, the point that Mr Rashid ultimately succeeded on in relation to the part of the appeal was really only a matter that developed out of those submissions, but was not expressly stated in them. 53In those circumstances and in respect of the costs after 28 October 2013 I would either order each party pay their own or somehow put in place an order that they be costs that await the outcome in the Local Court. In relation to the latter course I do not think I should burden the Local Court with having to worry about costs of the appeal to the Supreme Court. 54Accordingly, I make the following orders: (7)I order the plaintiff to pay the defendant's costs of these proceedings up to and including 28 October 2013. (8)There be no order as to the costs of either party to these proceedings thereafter.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 November 2013

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