Rafidi v Commonwealth Bank of Australia Ltd [2017] NSWCA 96

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Rafidi v Commonwealth Bank of Australia Ltd [2017] NSWCA 96 Hearing dates: 10 May 2017 Decision date: 10 May 2017 Before: Basten JA at [1]; Emmett AJA at [21] Decision: (1) Dismiss the notice of motion filed in the appeal and the appeal as incompetent.

(2) Dismiss the summons seeking leave to appeal.

(3) Order that Iyad Rafidi pay the costs of the Commonwealth Bank of Australia Ltd in both proceedings in this Court. Catchwords: APPEAL – challenge to orders made by consent – leave required pursuant to Supreme Court Act 1970 (NSW), s 101(2)(c) – challenge to refusal by trial judge to reopen orders made by consent – whether order interlocutory – whether leave required pursuant to Supreme Court Act 1970 (NSW), s 101(2)(e) – whether appeal lodged without leave incompetent – whether notice of motion in appeal incompetent

JUDGMENT AND ORDERS – orders made by consent – request by successful party to trial judge to refer papers to Attorney General to investigate prosecution of unsuccessful defendant – request refused by trial judge – whether consent vitiated by failure to seek referral before judgment entered – whether request for referral justified Legislation Cited: Supreme Court Act 1970 (NSW), s 101 Uniform Civil Procedure Rules 2005 (NSW), r 36.16 Cases Cited: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246 Paycorp Payment Solutions Pty Ltd v Chai (No 3) [2011] NSWSC 1632 Category: Principal judgment Parties: Iyad Rafidi (Applicant) Commonwealth Bank of Australia Ltd (First Respondent) Brick and Block Company Pty Ltd (In liq) (Second Respondent) Representation: Counsel: Mr R S Angyal SC (Applicant) Ms E Holmes (First Respondent)