Abela by his tutor Abela v Chevalier College [2024] NSWSC 708

Supreme Court New South Wales

Medium Neutral Citation: Abela by his tutor Abela v Chevalier College [2024] NSWSC 708 Hearing dates: 3 June 2024 Date of orders: 13 June 2024 Decision date: 13 June 2024 Jurisdiction: Common Law Before: Griffiths AJ Decision: (1) Leave to appeal is granted in respect of the proposed grounds of appeal in the amended summons, apart from any ground which purports to raise complaints of waiver and/or estoppel. (2) The appeal is dismissed, with costs. Catchwords: CIVIL PROCEDURE – Claim splitting – whether the two statements of claim raise two distinct causes of action or a single cause of action that was impermissibly split contrary to s 24 of the Civil Procedure Act 2005 (NSW) – where one statement of claim claimed fees owed under contract and pleaded breach of contract and the other claim pleaded mistaken provision of financial discounts to school fees based on false and misleading information provided by the applicant and sought restitution for unjust enrichment CIVIL PROCEDURE – Setting aside of default judgments – whether inadequate service under r 10.20(2) of the Uniform Civil Procedure Rules 2005 (NSW) – where the Magistrate's finding on service was substantially based on serious adverse credibility findings in relation to the applicant – whether the Magistrate's finding was glaringly improbable or contrary to compelling inferences – whether the Magistrate erred in finding that there was no adequate explanation for the two year delay Legislation Cited: Civil Procedure Act 2005 (NSW) s 24 Local Court Act 2007 (NSW) ss 29(1)(a), 40(2)(a) Uniform Civil Procedure Rules 2005 (NSW) rr 10.20(2)(b), 13.4, 36.15, 36.16(2) Cases Cited: Abela v Chevalier College [2024] NSWSC 50 Abela v Chevalier College (No 2) [2024] NSWSC 640 Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503 Dalton and Schaeffer as Executors of the Estate of the Late John Herman Schaeffer v Naegeli [2024] NSWCA 51 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 House v The King (1936) 55 CLR 499; [1936] HCA 40 Islam v Australian Real Estate Relations Pty Ltd [2023] NSWCA 131 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 Mohareb v Office of the Director of Public Prosecutions NSW [2024] NSWCA 93 Styles v Rowley [2023] NSWSC 1053 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 Wealthsure Pty Ltd v Financial Ombudsman Service Ltd [2013] FCA 292 Category: Principal judgment Parties: Michael Joseph Abela by his tutor Matthew Joseph Abela (Applicant/Plaintiff) Chevalier College (Respondent/Defendant) Representation: Counsel: Z Carrigan (Applicant/Plaintiff) P Horobin (Respondent/Defendant)