Mohareb v Kelso [2017] NSWCA 98

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Mohareb v Kelso [2017] NSWCA 98 Hearing dates: 26 April 2017 Decision date: 12 May 2017 Before: Basten JA at [1]; Simpson JA at [27] Decision: (1) Refuse leave to appeal from the judgment in the District Court of 12 September 2016.

(2) Order that the applicant pay the respondent's costs (as a litigant in person), and the costs of the parties sought to be joined, of the application. Catchwords: APPEAL – application for leave to appeal – interlocutory orders – application to add defendants – whether arguable cause of action – application to add further fresh claims – questions of practice and procedure – whether proposed new pleadings defective – whether error on part of trial judge – whether refusal of leave would cause substantial injustice

TORTS – duty of care – liability for criminal activities of third party – whether arguable that business directly liable for criminal acts of employee or independent contractor in circumstances where company had knowledge of criminal tendencies and created opportunity for third party to provide services to members of the public – whether claim reasonably arguable Legislation Cited: Civil Procedure Act 2005 (NSW), s 64 Supreme Court Act 1970 (NSW), s 101 Uniform Civil Procedure Rules 2005 (NSW), rr 14.7, 51.4 Cases Cited: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Caltex Refineries (Qld) Pty Ltd v Stavar [2009] 75 NSWLR 649; [2009] NSWCA 258 Deatons Pty Ltd v Flew (1949) 79 CLR 370 Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44 House v The King (1936) 55 CLR 499; [1936] HCA 40 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61 New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 Prince Alfred College Inc v ADC [2016] HCA 37; 90 ALJR 1085 Smith v Leurs (1945) 70 CLR 256 TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 [2002] NSWCA 82] The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 Category: Principal judgment Parties: Nader Mohareb (Applicant) Alexander Edward Kelso (Respondent) Representation: Counsel: Applicant self-represented Respondent self-represented Ms I J King (Proposed defendants)