Hyde v Tabone [2018] NSWSC 1601

Supreme Court New South Wales

Medium Neutral Citation: Hyde v Tabone [2018] NSWSC 1601 Hearing dates: 19 October 2018 Decision date: 23 October 2018 Jurisdiction: Common Law Before: Adamson J Decision: (1) Refuse leave to the plaintiff to appeal on grounds 1, 2, 3, 4, 5, 6, 7 and 8. (2) Otherwise dismiss the summons filed on 1 June 2018. (3) Order the plaintiff to pay the defendant's costs of the proceedings. Catchwords: APPEAL – appeal from the Local Court – claim for money advanced pursuant to a loan agreement – judgment ordered on the basis of restitution of money had and received – leave required for questions of mixed law and fact and interlocutory orders – no error demonstrated Legislation Cited: Civil Procedure Act 2005 (NSW), Pt 6 Local Court Act 1970 (NSW), ss 39, 40 Category: Principal judgment Parties: Roger Robert Hyde (Plaintiff) Frank Michael Tabone (Defendant) Representation: Counsel: D Maddox (Plaintiff) H Durack (Defendant)

Solicitors: Aubrey F Crawley & Co (Plaintiff) B W Tolson (Defendant) File Number(s): 2018/172003 Publication restriction: None Decision under appeal Court or tribunal: Local Court Jurisdiction: Civil Date of Decision: 4 May 2018 Before: Giles LCM File Number(s): 2017/115710

Judgment

Introduction 1. By summons filed on 1 June 2018, Roger Hyde seeks relief against Frank Tabone in respect of an appeal from a judgment entered in favour of Mr Tabone in the Local Court by Giles LCM on 4 May 2018. As Mr Tabone was the plaintiff in the Court below and is the defendant in this Court and Mr Hyde was the defendant in the Court below and is the plaintiff in this Court, I propose to refer to them by name to avoid confusion. 2. This Court has jurisdiction with respect to judgments and orders of the Local Court by reason of ss 39 and 40 of the Local Court Act 1970 (NSW). Section 39 provides for a right of appeal to this Court "only on a question of law". Section 40 provides for a right of appeal, subject to leave, on a question of mixed law and fact or an interlocutory judgment or order. 3. Before turning to the nine grounds of appeal, I propose to set out the background to the proceedings and summarise the reasons of the Court below.