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[2026] NSWCA 11
respondent. Leave to appeal refused; applicant to pay the respondent’s costs.
The Court of Appeal refused permission for a further appeal about an alleged $30,000 loan. It said the applicant had not identified a legal principle or public-importance question, nor shown a sufficiently clear injustice. The trial Magistrate could decide that the alleged loan was not proved without deciding that the written agreement was forged. The Court also rejected the claim that giving the former wife's evidence limited weight showed a failure to exercise jurisdiction. The costs of the proceedings were already far greater than the amount disputed, which reinforced the proportionality concern.
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2,174 words · generated 07/10/2026
Vakiloroaya v Norri concerned an application for leave to appeal from a Supreme Court decision dismissing a statutory appeal from the Local Court. The underlying claim was for $30,000, which Vakiloroaya said he had lent Norri on 13 July 2018. He alleged that Norri signed a written loan agreement. Norri denied signing it and denied receiving the money ([2]–[3]).
8 cited instruments linked from this judgment.
The Local Court heard the case over three hearing days. The original of the alleged loan agreement could not be located, and the computer on which it was said to have been prepared was unavailable ([2], [4]). The Magistrate dismissed the claim on 14 June 2024. The Court of Appeal summarised the Magistrate's conclusion as being that he was not satisfied that Norri signed the document or that Vakiloroaya advanced her $30,000 ([5]–[9]).
The evidence described in the appeal judgment included the absence of a contemporaneous record of the cash transfer, communications about the loan, or a documented demand for repayment before 2021. The Magistrate also considered that Vakiloroaya first said the funds came from a bank withdrawal, but changed that account after a bank subpoena showed the version was incorrect. The original loan document and the computer used to produce it were unavailable, limiting the ability to test the document. The Magistrate treated the former wife's evidence as having limited assistance because of inconsistencies in her accounts, and considered expert evidence about when the document was created to have limited utility ([6]–[8]). These are the matters the Court of Appeal recounted; it did not have the primary evidence before it ([4], [7]).
Vakiloroaya appealed to the Supreme Court under ss 39–41 of the Local Court Act 2007 (NSW). Harrison AsJ dismissed the grounds, which challenged the Magistrate's approach to relevance, evidentiary weight, inferences, factual findings and procedural fairness ([10]–[19]). For the Court of Appeal proceeding, the procedural fairness ground was abandoned ([19]).
The Court of Appeal considered a summons for leave to appeal. Because the amount in issue was below $100,000, s 101(2)(r) of the Supreme Court Act 1970 (NSW) required leave ([24]). Payne JA and McHugh JA refused leave and ordered Vakiloroaya to pay Norri's costs ([36]–[37]).
The Court's reasoning had two connected strands: the statutory leave threshold and the merits of the proposed grounds.
First, it applied the approach to leave set out in the cited NSW authorities. Generally, an applicant must identify an issue of principle, a question of public importance, or a reasonably clear injustice going beyond something merely arguable ([24]). The Court also emphasised proportionality. It referred to the need for finality in smaller claims and the risk that litigation costs will swamp the sum in dispute ([25]–[29]). Section 60 of the Civil Procedure Act 2005 (NSW), as quoted in the judgment, expresses an objective that court procedure resolve issues in a way that makes costs proportionate to the importance and complexity of the subject matter ([27]).
That approach mattered because the claim was for $30,000 and the Court said that a sum greatly in excess of that amount had already been spent on legal costs. A further appeal would inevitably add to those costs and, in the Court's view, be grossly disproportionate to the amount at stake ([30]). This was not the only reason for refusal, but it formed a significant part of the leave analysis.
Second, the Court rejected the applicant's central characterisation of the lower courts' decisions. Vakiloroaya argued that the Magistrate could not dismiss the claim without finding the alleged agreement fraudulent or forged. The Court held that this was not the governing requirement. The critical question was whether Vakiloroaya had proved that the loan was made. The Magistrate correctly placed the onus on the plaintiff, and did not have to find forgery before deciding that the plaintiff had failed to discharge it ([32]–[34]). The Court relied on Burnside v Mulgrew and Miles v Amos for that proposition ([33]).
The Court also rejected the proposed jurisdictional argument concerning Ms Khatibi's evidence. The Magistrate had assessed that evidence as of limited assistance, and Harrison AsJ had found that the Magistrate was entitled to give it little weight. In the Court of Appeal's analysis, an argument about how much weight to assign to evidence did not establish that the Magistrate misunderstood the claim or failed to exercise jurisdiction. The applicant had also not made this particular jurisdictional complaint to Harrison AsJ, and did not show a sufficient reason to raise it for the first time in the Court of Appeal ([35]).
The Court therefore concluded that no qualifying issue or reasonably clear injustice had been shown. The application failed at the leave stage; the Court did not conduct a new trial of the loan claim ([31], [34]–[37]).
The judgment presents the leave framework as established, rather than announcing a new test. For an appeal below the statutory $100,000 threshold, s 101(2)(r) made leave necessary. The Court drew on earlier Court of Appeal authorities for the general criteria: an issue of principle, a question of public importance, or reasonably clear injustice beyond mere arguability ([24]). Its discussion of proportionality likewise relied on existing authorities and s 60 of the Civil Procedure Act ([25]–[29]).
The judgment's application of those principles confirms that the amount in dispute and the likely costs of further litigation can weigh against leave. That is not expressed as an automatic rule that a small claim cannot be appealed. Rather, the Court describes proportionality as part of the assessment, alongside the importance of the issue and the gravity of any alleged error ([26]–[30]). It found this particular proposed appeal a poor fit for leave because the costs already substantially exceeded the $30,000 claim, further costs would follow, and the proposed grounds did not reveal a qualifying issue or sufficiently clear injustice ([30]–[31]).
On proof of the alleged loan, the judgment applies the ordinary allocation stated in its reasons: the plaintiff had to satisfy the Magistrate that the loan was made. It clarifies the point relevant to the applicant's argument: rejecting the claim for failure of proof did not require an affirmative finding that the document was forged ([33]–[34]). The judgment does not state that the disputed document was irrelevant. It says the Magistrate considered it in the context of the evidence as a whole ([34]).
The decision also illustrates a distinction between evidentiary disagreement and jurisdictional failure. A complaint that a fact-finder gave a witness's evidence limited weight does not, on the reasoning here, itself demonstrate a failure to understand or determine the case ([35]). The Court's conclusion was tied to this record and to the fact that the new jurisdictional formulation had not been raised before Harrison AsJ. It did not purport to establish that every first-raised complaint is barred; it found no sufficient reason to permit this one to be advanced for the first time ([35]).
At [24], the Court states that leave generally requires “the identification of an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable.” In plain English, it is not enough to show that another view of the facts is arguable. The proposed appeal must meet a more substantial threshold.
At [27], the Court refers to s 60 of the Civil Procedure Act, which calls for court procedure to resolve disputes in a way that keeps costs proportionate to the importance and complexity of the dispute. The Court uses this as support for considering the relationship between the amount claimed and the expense of continued litigation.
At [30], the Court says the costs already incurred were greatly in excess of the $30,000 in issue, and that leave would inevitably result in more costs. The practical meaning is that the Court regarded the financial scale of the appeal as a serious consideration against further litigation in this case.
At [33], the Court says that the Magistrate did not have to find the alleged agreement forged before dismissing the claim. In plain English, the applicant had to prove that the loan was made. The court could remain unpersuaded by the evidence without deciding that someone had created a fraudulent document.
At [34], the Court explains that the Magistrate assessed the alleged agreement alongside the rest of the evidence and was not satisfied about either the respondent's signature or the advance of the money. This stresses that the factual assessment was cumulative, not limited to the document alone.
At [35], the Court says that a question of evidentiary weight does not demonstrate a misunderstanding of the case or a failure to exercise jurisdiction. In plain English, a party's disagreement with how much weight a judge gave a witness is not, by itself, proof that the judge failed to decide the dispute.
The decision is most directly relevant to an application for leave to appeal in NSW where the amount in issue is below $100,000 and the applicant needs leave under s 101(2)(r) of the Supreme Court Act. It is particularly pertinent where the proposed grounds mainly challenge the weight of evidence or factual inferences, rather than identifying a legal principle, a question of public importance or a reasonably clear injustice ([24], [30]–[31]).
It is also relevant where a plaintiff relies on a disputed written agreement to prove a transaction, but the trier of fact is not satisfied that the underlying transaction occurred. The judgment indicates that a court need not make a positive finding that the document is forged before finding that the claimant has not proved the transaction. The document is assessed as part of the evidence as a whole ([32]–[34]).
A further relevant pattern is a proposed appeal framed as a failure to exercise jurisdiction because the first-instance court gave limited weight to a witness's evidence. Vakiloroaya indicates that an evidentiary-weight complaint does not by itself establish jurisdictional failure. The procedural history may also matter: the Court considered that the applicant had not raised the particular jurisdictional complaint before the intermediate court and had not shown a sufficient reason for raising it for the first time on appeal ([35]).
The decision should not be read as a rule that every small-value appeal must fail, that every dispute about a document is merely factual, or that an appellate court can never consider an evidentiary-weight issue. Its reasoning is tied to the statutory threshold, the grounds advanced, the evidentiary record as summarised in the judgment, and the disproportionality of costs in this case.
The judgment supplied for this analysis contains no decisions issued after Vakiloroaya v Norri and gives no account of how later courts have treated it. No later application, distinction, approval or criticism can therefore be identified from this source.
The judgment itself cites earlier authorities for the leave threshold, proportionality and proof principles. It cites Jaycar, Be Financial, The Age Company, Secretary, Department of Family and Community Services v Smith, PPK Willoughby and Cheng v Motor Yacht Sales in relation to the leave framework ([24]). It refers to Carolan, Gurr and Ritson on finality, costs and proportionality ([25]–[27]), and Burrows on the suitability of disproportionate-cost litigation for leave ([28]). For the point that a finding of forgery was not a prerequisite to dismissal for failure of proof, it relies on Burnside and Miles ([33]). Those are the authorities the Court used; the judgment does not establish how any later court has treated this decision.
The decision does not define a numerical measure for when litigation costs become disproportionate. It refers to the amount claimed, the costs already incurred, the expected further costs, and the importance or gravity of the proposed appeal grounds, but it does not prescribe a formula ([26]–[30]).
It does not comprehensively state what circumstances will amount to a “reasonably clear injustice” in every below-threshold appeal. The Court applied that standard to the proposed grounds before it and found it was not met ([24], [31], [34]–[35]).
Nor does the decision set out an exhaustive framework for assessing disputed documents or inconsistent witness evidence. It records that the Magistrate considered the alleged agreement in the context of all the evidence, and that the appellate courts found no error in that approach. The Court's narrower holding is that the Magistrate did not have to find forgery before concluding the loan was not proved ([33]–[34]).
Finally, the judgment does not determine any general rule about raising new grounds on appeal. It says that this applicant had not made the jurisdictional complaint to Harrison AsJ and showed no sufficient reason for advancing it for the first time in the Court of Appeal ([35]). How that consideration applies in other procedural settings would depend on their facts and governing rules.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Vakiloroaya v Norri [2026] NSWCA 11
Hearing dates: On the papers
Date of orders: 11 February 2026
Decision date: 11 February 2026
Before: Payne JA; McHugh JA
Decision: (1) Leave to appeal refused.
(2) Applicant to pay the respondent’s costs.
Catchwords: APPEAL — application for leave to appeal — no issue of principle or question of public importance identified — where amount in issue substantially less than statutory threshold pursuant to s 101(2)(r) of the Supreme Court Act 1970 (NSW)
Legislation Cited: Civil Procedure Act 2005 (NSW), s 60
Local Court Act 2007 (NSW), ss 39–41
Supreme Court Act 1970 (NSW), s 101(2)(r)
Cases Cited: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Burnside v Mulgrew; Re the Estate of Doris Grabrovaz [2007] NSWSC 550
Burrows v Macpherson & Kelley Lawyers (Sydney) Pty Ltd [2021] NSWCA 148
Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69
Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118
Gurr v Robinson (Court of Appeal (NSW), 10 February 1986, unrep)
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Miles v Amos [2021] NSWSC 38
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
Ritson v Commissioner of Police, New South Wales Police Force [2019] NSWCA 106
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206
The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26
Vakiloroaya v Norri [2025] NSWSC 672
Category: Principal judgment
Parties: Vahid Vakiloroaya (Applicant)
Leila Norri (Respondent)
Representation: Counsel:
A Kaufmann (Applicant)
M Parker (Respondent)
Solicitors:
Stanford Lawyers (Applicant)
Meridian Lawyers (Respondent)
File Number(s): 2025/00267162
Publication restriction: None
On 19 February 2021, the applicant commenced proceedings against the respondent in the Local Court of New South Wales seeking recovery of $30,000 allegedly lent to the respondent on 13 July 2018. The applicant asserted that the respondent had signed an agreement the applicant had drafted evidencing the loan (an original of that document can no longer be located and the computer on which the agreement was drafted is no longer available).
On 1 December 2021, the respondent filed a further amended defence. She denied that she had signed the loan agreement and denied that any money had been advanced to her as recorded in the alleged loan agreement.
The Local Court proceedings were heard by Brender LCM over three days on 30 September 2022, 31 May 2023 and 26 February 2024. Affidavits were sworn by the applicant and respondent and each apparently gave evidence, although the applicant did not put any of that affidavit evidence or transcripts of the hearing before the Magistrate in the materials placed before this Court.
On 14 June 2024, the Magistrate dismissed the applicant’s claim. In his written reasons, his Honour did not find that the signature on the alleged loan agreement was a forgery, but proceeded on the basis that the plaintiff still bore the onus to the civil standard of proving the existence of the loan. His Honour stated that “[e]vidence about the legitimacy of that document is an important matter to be taken into account in assessing whether the plaintiff has discharged the onus”: at [32].
In assessing the evidence as a whole, his Honour “considered the following in combination” (at [50]):
that the term of the loan was alleged to be for one year, falling due in 2019, and yet the applicant could not point to any evidence at all of any claim made for repayment until in 2021. That claim was made in the context of other civil cases and a criminal charge against the applicant (in which the respondent was a witness) and a falling out between the applicant’s and respondent’s families;
that the applicant’s first sworn version of events was wrong. He asserted that the $30,000 had been withdrawn from a bank account in Ultimo. That was the version contained in an affidavit read on the first day of the hearing. A subpoena to the bank proved that this version was untrue. The applicant’s version then changed completely. He said the source of the cash was a box stored at home. The $30,000 in cash was allegedly taken from this box and handed to the respondent. The Magistrate took into account the fact that the applicant gave incorrect evidence about important matters which were capable of verification and the applicant did not correct this egregious error until after it was apparent it could be disproved;
that outside the “loan agreement” allegedly signed in July 2018, whilst there was some oral evidence there was no written or alleged oral evidence of any reminder or claim for repayment;
“(1) The Magistrate erred by taking into account irrelevant considerations, being relevantly (Irrelevant consideration):
(a) There existed an opportunity to create a false document or false signature which was unable to be adequately tested because Vakiloroaya disposed of his computer and did not retain the original document, as well as the matters which underpinned that finding; and/or
(b) There is no original verifiable receipt or agreement.
(2) The Magistrate erred by failing to give proper weight to certain evidence, being relevantly (Weight given to evidence):
(a) The loan agreement;
(b) Admissions made by Norri to Vakiloroaya’s former wife;
(c) The expert evidence; and
(d) Evidence of payment by Mr Mina to Vakiloroaya.
(3) The Magistrate erred by failing to draw the proper inferences of fact, in respect of (Inference of fact):
(a) The loan agreement;
(b) The computer system clocks; and
(c) The assessment of Vakiloroaya’s evidence.
(4) The Magistrate erred by finding facts without supporting evidence and/ or contrary to the evidence, in respect of (No probative evidence):
(a) The evidence of Ms Khatibi; and
(b) Norri’s evidence.
(5) The Magistrate erred by failing to admit evidence and accord procedural fairness in respect of evidence relevant to the receipt of cash from Mr Mina (Procedural fairness).”
Her Honour dismissed Appeal Ground 1. Her Honour considered that the Magistrate “correctly identified the principles to be applied in deciding whether Vakiloroaya had discharged his onus, at [31]-[34] of the Judgment”: at [19]. Her Honour found that the Magistrate was entitled to make the findings of fact in [50] of the judgment which we have summarised at [6] above. In her Honour’s view, those matters were not irrelevant considerations.
Her Honour dismissed Appeal Ground 2. Her Honour affirmed that the weight that was given by the Magistrate to the oral evidence and written record was open to him. Her Honour considered that the Magistrate did consider the terms of the alleged loan agreement. The Magistrate was not obliged to assign weight to every piece of evidence.
Her Honour found that Brender LCM had considered the expert evidence of Mr Curtis. By reason of the absence of the computer used to produce the alleged loan agreement, Mr Curtis’ evidence was inconclusive and Brender LCM found that this evidence had a neutral effect. Harrison AsJ discerned no error in this approach.
The Magistrate gave a number of reasons for his conclusion that Ms Khatibi’s evidence was of limited assistance. Harrison AsJ discerned no error in this approach.
Her Honour dismissed Appeal Ground 3. Her Honour affirmed that the drawing of inferences by the Magistrate was open to him: at [112]. The Magistrate did not make a finding that the clocks had been backdated. Rather his Honour was addressing the evidence of the expert as to how the clocks could be backdated: at [112].
Given the state of the evidence before him, the Magistrate was not required to make a specific finding about the respondent’s signature on the purported agreement: at [113]. A fair reading of the Magistrate’s decision is that his Honour was not satisfied it had been shown the respondent had signed the document.
The Magistrate was entitled to comment that the fundamental error by the applicant about the source of the funds used to make the alleged loan mentioned at [35] of the judgment “was a big mistake to have made”. This was because the applicant “made the correction because the answer to the subpoena to the bank showed the earlier evidence was incorrect”: at [114].
Her Honour dismissed Appeal Ground 4. Her Honour considered that it was likely that the respondent had her children with her on 13 July 2018, which was another matter tending against acceptance of the applicant’s account of events on that day. Her Honour found that there was no error of law or of mixed fact and law made by the Magistrate. Even if there had been such an error, this was not a matter for which leave to appeal would be granted, as it did not satisfy the test for leave to appeal under the Local Court Act.
Ground 5 of the appeal to the Supreme Court below has been abandoned in the current application and need not be further addressed.
“1 The appellant appeals the decision of Harrison AsJ of 26 June 2025 and claims that learned judge erred at law in dismissing the appeal by:
a. Finding that weight given to the purported written loan agreement and the admissions by the respondent about the loan was discretionary, and the Magistrate was not obliged to assign weight to every piece of evidence, where:
i. the inferences drawn by the Magistrate in relation to the loan agreement could not have been reasonably drawn; and / or
ii. findings were made by the Magistrate that no person acting judicially and properly instructed as to the relevant law could have made;
b. Failing to give any, or any proper, weight to the written loan agreement in proving the applicant’s case before the Magistrate, where the Magistrate had erred by failing to determine whether it was genuine or fraudulent and thereby failed to address and determine the issues before the court and exercise the court’s jurisdiction;
c. Failing to give any, or any proper, weight to the evidence of admissions by the respondent about the loan, where the Magistrate did not reject that evidence, in proving the applicant’s case before the Magistrate, demonstrating a basic misunderstanding of the case brought and thereby failing to exercise the court’s jurisdiction.”
“a. Was it open on the facts, in the face of the written loan agreement and admissions by the respondent as to the existence of the loan, to dismiss the applicant’s claim?
b. Was there a failure to exercise the court’s jurisdiction in circumstances where:
i. The written loan agreement was a critical document, such that the court was bound to either find the document fraudulent (which it did not) or give judgment for the applicant; and / or
ii. There was evidence of the respondent admitting the loan to the applicant’s wife, which was not rejected or subject to any adverse credit finding, but was instead found to be of “limited assistance”.”
The applicant submitted that the “most fundamental problem” with the decision of Brender LCM was that his Honour did not decide that the written loan agreement was false, yet still proceeded to dismiss the claim despite that critically important document. The “fundamental problem” with the decision of Harrison AsJ was that her Honour did not correct this error of Brender LCM, being an error of law by failing to exercise the Court’s jurisdiction.
It was also submitted that there was a failure to exercise jurisdiction. The applicant’s former wife, Ms Khatibi, gave evidence before the Local Court of the respondent making a key admission to her about the loan. Given that Brender LCM did not reject that evidence, and made no adverse credit finding against Ms Khatibi, there was no proper basis to find that her evidence was of “limited assistance”.
The amount at issue in these proceedings being less than $100,000, leave to appeal is required by s 101(2)(r) of the Supreme Court Act 1970 (NSW). A grant of leave to appeal generally requires the identification of an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as Tr**ustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[38] (“Be Financial”); The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]; PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [6]; Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118 at [15] (“Cheng v Motor Yacht Sales”).
In Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 at 6 it was pointed out that, where small claims are involved, it was desirable that there be “early finality and determination of litigation otherwise the costs which will be involved are likely to swamp the money sum involved in the dispute”. As Kirby P explained in Gurr v Robinson (Court of Appeal (NSW), 10 February 1986, unrep):
“One justification is that, where the amount in issue in a case is small, the parties have a special interest in finality. Protracted litigation necessarily involves costs and inconvenience. If the stake is small, the costs may soon become disproportionate to the amount in issue. Secondly, the provision reflects a number of public interests which must be protected by the Court. They include the discouragement of litigation, the principal purpose of which is to recover an order for costs, and the efficient and cost-effective use of court time, which necessarily involves large public costs.”
“It is well recognised that there is a need for restraint in granting leave to appeal in matters such as the present where the amount in issue is below the threshold of $100,000: Daily Examiner Pty Ltd v Mundine Brown v Mundine [2011] NSWCA 126 at [4]–[5]; Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 at 2–3; and Be Financial at [37]–[39]. Injustice involves a balancing exercise and the entitlement of parties to justice is not unconditional and must have regard to a number of factors, including the proportionality of the costs involved to the amount in dispute. In this case, the costs of an appeal would be disproportionate to the relatively modest amount in issue of approximately $43,000.”
“the entitlement of the parties to justice is not unconditional, but is dependent upon the resources of the court made available by the government and the appropriate allocation of resources by the parties, which may depend upon their individual assessments of the importance of the issues in dispute.”
Litigation such as the present, where the costs far exceed the amount in issue, provides “a poor candidate for a grant of leave”: Burrows v Macpherson & Kelley Lawyers (Sydney) Pty Ltd [2021] NSWCA 148 at [44].
As Bell CJ said in Cheng v Motor Yacht Sales at [21]:
“Section 101(2) of the Supreme Court Act is an important mechanism which equips the Court of Appeal with a measure of control over the range of cases that compete for its attention. Section 101(2)(r) identifies $100,000 as the threshold value of the matter(s) at issue that must be satisfied before a right of appeal to the Court of Appeal may be enjoyed. Where the value of the matter(s) at issue falls below that amount, an applicant for leave must meet the criteria which have been identified in the cases referred to above. In this context, s 101(2) is also concerned with notions of proportionality; the importance of the issue or the gravity of the error of principle relied upon to justify leave will influence the likelihood of leave being granted. This is the reason for the insistence in the authorities that the points sought to be raised on appeal, if leave is granted, must be more than “reasonably arguable”.”
This is a clear case where leave to appeal should be refused. The dispute relates to an allegedly unpaid loan of $30,000. A sum greatly in excess of that amount has already been spent on legal costs. A grant of leave would lead, inevitably, to the expenditure of yet more in legal costs. The costs following a grant of leave in the present case would be grossly disproportionate to the amount at stake.
The applicant does not identify any issue of principle or question of public importance. The alleged “fundamental problem” said to give rise to a substantial injustice does not arise.
We do not accept the characterisation by the applicant of the decisions of Harrison AsJ or Brender LCM in this regard. The applicant tendered a copy of a “loan” document said to have been signed by the respondent. This was said to evidence the critical underlying disputed fact, the advance of a $30,000 loan. The respondent denied that she had signed the document or received a loan from the applicant, in any amount.
Brender LCM, correctly, determined that the applicant bore the onus of satisfying him that the loan had been made. Harrison AsJ, correctly, found no error in the learned Magistrate’s approach. It is not correct that the Magistrate had to make a finding that the alleged loan agreement was a forgery before deciding that the plaintiff had failed to prove his case: Burnside v Mulgrew; Re the Estate of Doris Grabrovaz [2007] NSWSC 550 at [28] (per Brereton J); Miles v Amos [2021] NSWSC 38 at [88] (per Hallen J).
The Magistrate considered the evidence about the alleged loan agreement in the context of the evidence as a whole and concluded that he was not satisfied that the respondent had signed the alleged loan agreement or that the applicant had made the $30,000 loan. The applicant has not shown a reasonably clear injustice going beyond something that is merely arguable.
As to the alleged “admission” said to have been made by the respondent to the applicant’s former wife, Ms Khatibi, no error has been shown in the decision of Brender LCM who found the evidence (which was not before us) to be of “limited assistance”. Harrison AsJ correctly concluded that the Magistrate was entitled to give little weight to the evidence of Ms Khatibi. A question of weight does not demonstrate a basic misunderstanding by Brender LCM of the case brought, nor a failure to exercise the Court’s jurisdiction. No error has been shown in the approach of Harrison AsJ to that finding. The alleged failure to exercise the Court’s jurisdiction was not a complaint made by the applicant to Harrison AsJ about the decision of the Magistrate and no sufficient reason has been shown why the applicant should be given leave to pursue that complaint for the first time in this Court. The applicant has not shown a reasonably clear injustice going beyond something that is merely arguable.
For the foregoing reasons we make the following orders:
Leave to appeal refused.
Applicant to pay the respondent’s costs.
**********
Vakiloroaya
Norri [2026] NSWCA 11
(2022) 108 NSWLR 342
(2017) 95 NSWLR 597
(2013) 82 NSWLR 268
Leave to appeal refused; applicant to pay the respondent’s costs.
that the loan was not the subject of any contemporaneous communications (such as emails or text messages). There were no contemporaneous phone records of the applicant and respondent communicating (i.e., on the day of the alleged loan: see at [7]);
that there is no record at all recording the receipt of $30,000 in cash said to have been the subject matter of the loan;
that there is no original of the alleged “loan agreement” in existence. The Magistrate regarded the applicant’s explanation for why he did not have the original as “unconvincing”: at [44]. The Magistrate found that by reason of absence of the original and the computer used to create the document, there was an opportunity to create a false document and/or false signature. Those matters could not properly be tested; and
there was no evidence of any use of the loan money by the respondent, nor any evidence of an apparent need for money other than an alleged desire to “seek legal advice”.
There was also evidence from Ms Khatibi, the applicant’s former wife. The Magistrate ultimately concluded that this evidence was of “limited assistance”: at [41]. The applicant denied that he told Ms Khatibi about the $30,000 loan in 2018 and did so only in 2021. In her affidavit (which like all other primary evidence was not before this Court), Ms Khatibi gave a very different account. She said she had been told by the respondent about the loan in 2018 and had discussed the loan with the applicant at that time. The Magistrate records that when cross-examined, Ms Khatibi gave yet another account, namely that the first time she discussed the loan with the applicant was in 2022. By reason of these fundamental inconsistencies, and the fact that Ms Khatibi’s evidence, prepared years after the relevant events, purported to recall some events with “great specificity”, the Magistrate gave her evidence little weight.
His Honour also considered expert evidence of a Mr Curtis who examined the copy of the alleged loan agreement. That evidence did not concern the question of who signed the agreement but rather when the agreement was created. By reason of the unavailability of the original “loan agreement” and the computer used to create that agreement, Mr Curtis’ evidence was of limited utility.
Read fairly and in context, the conclusion of the Magistrate was that his Honour was not satisfied that the respondent had signed the loan agreement and was not satisfied that the applicant had advanced the respondent $30,000 in July 2018 as alleged. The claim was dismissed.
Leave to appeal should be refused with costs.