Sinanovic v Bone

1. [1]

   THE COURT: This is an application for leave to appeal from a 24 June 2025 decision of Leeming JA (sitting at first instance in the Common Law Division: Sinanovic v Bone (No 2) [2025] NSWSC 652).

2. [2]

   The underlying dispute relates to a sum of $65,246.85 found in the Local Court to be owing under a lease agreement by the applicant, Mr Sinanovic, to the respondent, Ms Bone. For the same reasons as given by Leeming JA, that no reason was shown why the grant of leave to a lay advocate to appear for the applicant in this Court on appeal should be less freely available than in the Local Court at trial, we permitted the applicant to be represented by a lay advocate, Ms Sinanaj, in this Court.

3. [3]

   For the reasons that follow, no arguable error has been shown in the decision of Leeming JA and leave to appeal is refused with costs.

Facts and procedural history

1. [4]

   In 2016 the parties executed an agreement under which the applicant leased a residential unit in Rozelle from the respondent. The term of the lease was 16 December 2016 to 15 December 2017. The rent payable was $1,300 per week.

2. [5]

   The applicant continued to occupy the Rozelle unit until 14 August 2020. A further lease agreement was signed by both parties in 2018. That lease agreement increased the rent from $1,300 to $1,500 per week. The applicant does not dispute that he signed the 2018 lease agreement.

3. [6]

   On 4 November 2020, the respondent commenced proceedings in the Local Court against the applicant seeking payment of outstanding rent following the termination of the tenancy. Damages to make good the premises were also sought. The matter was first heard by Hosking LCM on 9 November 2021 and 11 March 2022. On 11 March 2022, judgment was given in favour of the respondent. On 26 October 2022, Garling J set aside that decision and remitted the matter to the Local Court: Sinanovic v Bone [2022] NSWSC 1474.

4. [7]

   On 13 December 2023 and 19 June 2024, the matter was heard by Brender LCM. Near the end of the day on 13 December 2023, the magistrate directed re-examination to occur by way of affidavit and ordered an exchange of written submissions in January and February 2024. The purpose of his Honour doing so was to avoid a significant delay occasioned by scheduling another hearing day. The applicant, in the event, made an application to reopen, which resulted in a further hearing day on 19 June 2024 at which evidence was given by both parties. Judgment was reserved on 19 June 2024 and delivered on 11 July 2024. On 11 July 2024, Brender LCM found in favour of Ms Bone in the amount of $65,246.85 inclusive of interest. On 26 July 2024, Brender LCM ordered Mr Sinanovic to pay Ms Bone’s costs of the proceeding, but the order did not extend to costs referable to the first hearing.

Proceedings before the primary judge

1. [8]

   The applicant appealed to the Supreme Court, purportedly as of right. The grounds of appeal were:

2. [9]

   Under s 39 of the Local Court Act 2007 (NSW) the respondent was entitled as of right to appeal to the Supreme Court on a question of law:

3. [10]

   Under s 40 of the Local Court Act the respondent was entitled, by leave, to appeal to the Supreme Court on a question of mixed law and fact:

4. [11]

   Judgment was delivered on 24 June 2025, granting leave to the extent necessary, but dismissing the appeal with costs. Leeming JA delivered comprehensive reasons which may be summarised as follows.

5. [12]

   A failure to accord procedural fairness falls within the scope of an appeal limited to a question of law: Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105 at [38]. A decision affected by apprehended bias falls into the error of law category: IIB Australia Pty Ltd v Owners Strata Plan 76024 [2014] NSWSC 1835 at [17], [20] and [30]; O’Meara v Adams (No 2) [2021] NSWSC 1167 at [29]. Nuance in the application of the latter principle, however, was identified in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [159] and Wood v Firth [2013] NSWSC 845 at [43].

6. [13]

   Section 60 of the Civil Procedure Act 2005 (NSW) identified necessary and overriding considerations in determining whether leave should be granted. Leeming JA applied the principle that earlier interlocutory orders, made by another judge of the Division, can be varied where changed circumstances make it just and proper to do so: Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126 at 134. Leeming JA said, at [27]:

7. [14]

   Leeming JA observed at [30] that “[t]he written submissions in support of ground 1 focussed upon the point which was the subject of ground 6, namely the Magistrate’s decision to permit Mr Sinanovic to give evidence in re-examination by affidavit rather than in open court.” Mr Sinanovic contended the magistrate’s decision was to protect Ms Bone and her lawyers from public scrutiny in open court and it was unfair that he was attacked in open court during which his credit was impugned. That argument was rejected. Leeming JA concluded at [32]:

8. [15]

   His Honour found that there was only advantage to Mr Sinanovic in the course adopted by the magistrate because it provided more time for consultation and preparation. The course adopted was potentially prejudicial to Ms Bone, who lost the ability immediately to object to questions asked of Mr Sinanovic. Ms Bone was also denied her entitlement that Mr Sinanovic be held to the answers he gave to non-leading questions in re-examination.

9. [16]

   Leeming JA rejected a submission that Mr Sinanovic was denied a public forum to vindicate his case. His Honour explained there is “no unfettered entitlement to a litigant or witness to give oral evidence in a court” at [36]. Leeming JA concluded on this group of issues at [38]:

10. [17]

    This is because the fact that a judge has decided a case adversely to a litigant cannot of itself support a contention of apprehended bias. The outcome of the case is the exercise of judgment: Studholme v Rawson (2020) 102 NSWLR 490; [2020] NSWCA 76 at [54]. Leeming JA recognised that there may be circumstances where a link can be drawn between the reasons for judgment and the conduct of a hearing: Muriniti v Kalil [2022] NSWCA 109 at [3] referring to Studholme v Rawson at [54]-[56]. His Honour found, however, that nothing said on behalf of Mr Sinanovic in support of this ground engaged the limited circumstances where that mode of reasoning would be available.

11. [18]

    Before the primary judge, Mr Sinanovic raised two further matters which were said to amount to, or contribute to, a failure of the magistrate to accord procedural fairness:

    1. (1)

       Failure to ensure that a subpoena was complied with. On 15 December 2021 during the first Local Court trial, Ms Bone sought and obtained a subpoena requiring the former property manager of the premises to produce documents, and on the second day of the first court hearing Ms Bone indicated they were still to be produced. Mr Sinanovic contended all relevant material needed to be available as a matter of procedural fairness, and the documents not produced would have assisted him in making his case; and

    2. (2)

       The magistrate’s refusal to allow Ms Sinanaj to call Ms Bone’s solicitor to give evidence about the existence of documents. Mr Sinanovic said that this decision infected the rehearing because counsel for Ms Bone remained silent on the issue and put matters to Mr Sinanovic in cross-examination which, based on the material in the documents, he knew to be false.

12. [19]

    Leeming JA rejected these submissions. First, any failure to accord procedural fairness in the first trial was irrelevant if cured by the second trial. Secondly, there was scant evidence of the factual basis supporting the complaint. Thirdly, it is not the role of the court to supervise production under a subpoena. It is for the issuing party to raise with the court and then further orders may be sought. There was no evidence that occurred here. Fourthly, the document about which complaint was made was ultimately annexed to an affidavit of Ms Cho (Ms Bone’s solicitor). Mr Sinanovic was given the opportunity to cross-examine Ms Cho about it. A subsequent argument that Mr Sinanovic was not able to cross-examine Ms Bone was tenuous at best as it was not clear Ms Bone ever saw the document. It was not her document.

13. [20]

    Leeming JA concluded that the second argument, in particular, revealed a misapprehension about the conduct of proceedings, at [49]:

14. [21]

    A separate point arose during the hearing before Leeming JA. It was asserted on behalf of Mr Sinanovic that the magistrate had said words to the effect that he had already made a decision before judgment was delivered. Leeming JA treated that as a submission that the magistrate did not bring an impartial mind to the matter: Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29. Leeming JA concluded that nothing in the evidence suggested the magistrate had predetermined anything. No transcript for 30 April 2024 was provided.

15. [22]

    Even if loose or imprecise language had been used by the magistrate about the state of the proceedings, Leeming JA found that the failure by Mr Sinanovic to apply for the magistrate to disqualify themselves thereafter meant he waived an entitlement to do so: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [76].

16. [23]

    Over objection by Ms Bone, Mr Sinanovic was allowed to give evidence that he asked for a hearing loop on 13 December 2023. A brief cross-examination was conducted. Leeming JA concluded that the evidence was “suggestive of a witness who was not disadvantaged” at [54]. Mr Sinanovic’s evidence was that he wore a hearing aid and could understand questions asked. No prejudice was found to have been sustained by him not having a hearing loop in previous hearings. Leeming JA found that the magistrate and all participants in the hearing in the Local Court did their best to take steps so that a defendant who lacked a legal practitioner acting for him obtained a fair hearing. His Honour found that the ground was not made out.

17. [24]

    An additional submission was made on behalf of Mr Sinanovic that procedural fairness and apprehended bias issues arose from errors in the transcript. After reviewing the entire transcript, including with annotations marked by Mr Sinanovic, Leeming JA determined the errors to be “unremarkable and utterly immaterial” at [60].

18. [25]

    In conclusion, on procedural fairness, his Honour said at [62]-[63]:

19. [26]

    Documents were tendered by both sides evidencing the background to the 2018 lease agreement which increased the rent from $1,300 to $1,500. These documents, all recording a rent of $6,517.87 per month, equating to $1,500 per week, included a draft tenancy agreement from 2018 that was not signed by the tenant, and a second and third document, said by Ms Bone to be the same document, made on 16 March 2018 for a lease term of 6 months. One of the documents was in very poor condition. The only noted difference was that “2 x garages” was included in one document and not the other. The differences between these documents were not regarded as material by Leeming JA.

20. [27]

    It was argued on behalf of Mr Sinanovic that the magistrate did not consider an unexecuted lease document. In submissions made to Leeming JA supplied on 19 June 2025 a complaint was made that the magistrate made no mention of evidence of incapacity to enter a contract. Leeming JA found that the magistrate did address capacity and decided that the magistrate correctly concluded that the evidence demonstrated capacity. Leeming JA found that, in any event, the magistrate was not asked to have regard to the unexecuted document.

21. [28]

    It was argued on behalf of Mr Sinanovic that the signature of the agent on the 2018 agreement was not valid because the agent was not licensed. Leeming JA noted he suspected that either the agent was licensed, but under a variation of her name, or in the alternative and in any case, the document remained valid under s 17 of the Residential Tenancies Act 2010 (NSW) which was properly applied by the magistrate.

22. [29]

    Finally, in relation to these grounds, it was submitted that there were inconsistencies in the rental ledger maintained by the agent which purportedly undermined the signed rental agreement. Leeming JA concluded that the arguments were not made to the magistrate and in any case were bad in law.

23. [30]

    Leeming JA concluded on these grounds at [80]:

24. [31]

    Allegations were made on behalf of Mr Sinanovic of improper alteration of the rental agreement. Leeming JA determined these allegations to be outside the scope of the grounds of appeal. In any event, Leeming JA was, at [82], “unpersuaded [the allegation] has any merit”.

25. [32]

    It was advanced on behalf of Mr Sinanovic that the magistrate improperly rejected a claim for rent abatement due to water damage. Leeming JA rejected this submission at [83]: “I am unpersuaded that there was error on the part of the Magistrate in failing to be satisfied of this aspect of Mr Sinanovic’s case.”

26. [33]

    Elaborate submissions were made on behalf of Mr Sinanovic to the effect that it was improper for the magistrate to accept evidence of a quote as opposed to a receipt when assessing the quantum of damages for wall patching. Leeming JA found at [86] that “[i]t was open to the magistrate to accept that document, coupled with Ms Bone’s testimonial evidence and the lack of challenge to the document in terms, in order to find that the loss was established.”

27. [34]

    Allegations were made on behalf of Mr Sinanovic that there was a failure by Ms Bone to comply with a court order to produce documentary evidence. Leeming JA found that the order was to provide particulars, and Ms Bone had done so at [87]: “The point of the order was to provide Mr Sinanovic with notice of this aspect of Ms Bone’s case. The submission misconceives the nature and purpose of the order, and the way in which facts are found.”

28. [35]

    Finally, Leeming JA explained that he had carefully considered each of the grounds of appeal, at [88]-[89]:

Leave to appeal to this Court

1. [36]

   Section 101(2)(r)(ii) of the Supreme Court Act 1970 (NSW) provides that an appeal to the Court of Appeal shall not lie, except by leave of the Court of Appeal, unless the matter involves (directly or indirectly) any claim respecting any property having a value of $100,000 or more. Leave is thus required here.

2. [37]

   Ordinarily, leave to appeal to the Court of Appeal is limited to matters which involve issues of principle, questions of general public importance or an injustice which is reasonably clear: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[38]; The Age Company Ltd & Ors v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]; Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118 at [15].

3. [38]

   That is especially so where the application involves small claims. The rationale for requiring leave where the matter in issue is less than $100,000 includes (see Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69 per Kirby P):

4. [39]

   It was common ground before this Court that the value of the case was $65,246.85. Although the applicant has not incurred legal costs the respondent has been legally represented throughout and this would now be the fifth occasion she has been required to pay lawyers to seek to recover a relatively modest sum. Section 60 of the Civil Procedure Act 2005 (NSW) provides:

5. [40]

   As Basten JA pointed out in Be Financial Pty Ltd at [39]:

The proposed notice of appeal if leave were granted

1. [41]

   The draft Notice of Appeal dated 24 November 2025, identifies the following grounds of appeal:

Consideration

1. [42]

   None of the five grounds of the proposed notice of appeal were raised before Leeming JA. The appeal before his Honour focused, almost exclusively, on alleged procedural defects in the hearing before Brender LCM. The one exception was an argument about the correct interpretation of s 17 of the Residential Tenancies Act, which does not feature in the applicant’s draft notice of appeal.

2. [43]

   A party will ordinarily be refused permission to rely on a point not raised at the hearing below: Bird v DP (a pseudonym) [2024] HCA 41; (2024) 98 ALJR 1349 at [38]-[39] (Gageler CJ, Gordon, Edelman, Steward and Beech-Jones JJ). This principle applies in this case with even greater vigour. The applicant requires leave to appeal and must show an issue of principle, question of general public importance or an injustice which is reasonably clear. Leave should be refused to raise matters for the first time in this Court, particularly where, as here, those matters could have been the subject of evidence before the primary judge.

3. [44]

   In oral submissions in this Court, Ms Sinanaj, who capably assisted the applicant, relied upon three particular matters:

   1. (1)

      the applicant’s alleged lack of capacity to contract;

   2. (2)

      alleged unconscionable conduct by the respondent and her lawyers; and

   3. (3)

      what was said to be clear evidence that the 2018 rental agreement was not a new agreement, as Brender LCM found at [54]. This was alleged (in footnote 6 of the applicant’s submissions in chief in this Court) to have been demonstrated by the fact that documents were allegedly relied upon by the respondent in New South Wales Civil and Administrative Tribunal (“NCAT”) proceedings but not produced under subpoenas issued in the Local Court.

4. [45]

   In this Court, Ms Sinanaj candidly and properly accepted that none of these matters had been raised by the applicant before Leeming JA. That concession, in and of itself, tends strongly against the grant of leave. What makes the case for refusing leave overwhelming is that each of these three matters involved contested factual investigations which had not taken place, even before Brender LCM, let alone before the Leeming JA:

   1. (1)

      As to the asserted lack of capacity to contract, Brender LCM recorded in his judgment that the applicant “points to no cogent evidence that he lacked capacity to contract…”. Leeming JA (at [68]) recorded that “No part of that reasoning was challenged during the hearing before me”. His Honour subsequently made a positive finding that later filed written submissions asserting lack of capacity must be rejected as no vitiating factor had been shown;

   2. (2)

      As to alleged unconscionable conduct, this was not pleaded or pursued before Brender LCM or Leeming JA. Proof of unconscionable conduct is heavily fact dependent. Those facts have never been investigated. To find unconscionable conduct here would be a gross departure from the rules of procedural fairness;

   3. (3)

      As to the allegedly “clear evidence” that the 2018 rental agreement was not a new agreement, this was not litigated before Leeming JA. This is quintessentially a question of fact. Those facts have not been properly investigated and it would be inappropriate to grant leave to investigate those facts in this Court.

5. [46]

   To the extent that Ms Sinanaj in this Court complained that her lack of proper preparation explained the omission to litigate these matters before Leeming JA (and that the applicant was denied procedural fairness by Leeming JA), we reject that submission. No such submission was contained in her extensive written submissions. Ms Sinanaj properly and forcefully represented the applicant’s interests before Leeming JA and in this Court. She successfully applied for leave to appear for the applicant as a lay advocate before Leeming JA and in this Court. No application for an adjournment was made to Leeming JA. No submission was made that there was any prejudice to the applicant in proceeding to hear his appeal on the day it was fixed before Leeming JA. As we have said, a fundamental obstacle in pursuing these matters was, in any event, the fact that the underlying facts had not been properly investigated.

6. [47]

   It was not, even arguably, an error by Leeming JA to fail to deal with grounds of appeal not put to him. Making appropriate allowance for the applicant’s lack of legal representation (Chalik v Chalik [2025] NSWCA 136 at [69]-[72] and the cases referred to therein), no issue of principle, question of general public importance or an injustice which is reasonably clear has been shown. Leave to appeal to consider grounds not put to the primary judge should be refused.

7. [48]

   For completeness, we will address three documents that characterise themselves as “written statement[s] in support of application for leave to appeal” filed by the applicant, despite the fact that they appear to travel way beyond the matters properly before this Court.

8. [49]

   In a written statement dated 23 September 2025, the applicant asserted that his human rights under the International Covenant on Civil and Political Rights (ICCPR) article 14(1), the Australian Constitution, and the “UNHR Convention on the Rights of Persons with Disabilities” were infringed by the decision of Leeming JA (and the Local Court, and NCAT).

9. [50]

   No basis was explained for how it was that any of these assertions could possibly be made out and how, if made out, they demonstrated any arguable error in the decision of Leeming JA.

10. [51]

    The applicant asserted that it was an error of law “to not allow Mr Sinanovic to rely upon the plea of NON EST FACTUM which would invalidate the disputed Residential Lease Agreement signed 21 March 2018”.

11. [52]

    No claim was made to Leeming JA that a plea of non est factum was available. No basis was explained for how it was that this claim, if made out, demonstrated any arguable error in the decision of Leeming JA. Leeming JA found that “it was necessary for Mr Sinanovic to do much more than he has so as to establish some vitiating factor to warrant departure from the ordinary significance of a signature on a legal document” at [71]. No arguable error in this conclusion has been shown.

12. [53]

    The applicant asserted that the award of damages for the respondent’s losses was erroneously granted “in the absence of any evidence proven of any such loss” and that doing so “falls with bias and beyond their judicial power”. No basis for this claim was demonstrated. No issue of principle, question of general public importance or an injustice which is reasonably clear has been shown.

13. [54]

    The applicant also complained about costs of the notice of motion and hearing before Faulkner J on 21 February 2025. This was not a matter before Leeming JA and is not a matter properly before this Court.

14. [55]

    A further written statement dated 24 November 2025 reiterated the arguments above of “failure to apply the doctrine” of unconscionable conduct and non est factum. As we have explained, the potential application of these doctrines raise factual issues which have not been investigated. No issue of principle, question of general public importance or an injustice which is reasonably clear has been shown.

15. [56]

    Two additional, but apparently related, arguments were advanced:

    1. (1)

       The court erred in not applying the “fair, just and reasonable” test in determining whether the 2018 lease agreement was fair “notwithstanding the rent asked was excessive at the time”.

    2. (2)

       “There is an error of law where despite the applicant’s evidence supported … unjust contract, the evidence provided by the applicant was given no weight at all” (emphasis in original).

16. [57]

    It may be by use of the term “unjust contract” the applicant intended to refer to unfair or unjust contracts within the meaning of the Contracts Review Act 1980 (NSW). This was not a matter raised before Leeming JA and is not a matter properly before this Court. No issue of principle, question of general public importance or an injustice which is reasonably clear has been shown. Leave should be refused to raise it for the first time in this Court.

17. [58]

    On 6 March 2026, a further written statement was filed by the applicant. A large proportion of the material included with that document refers to the first Local Court proceedings that were set aside by Garling J’s order on 26 October 2022. The applicant’s submissions assert:

    1. (1)

       The purported incapacity of the applicant on signing the 2018 rental agreement and that the case referred to by the Supreme Court in its decision, Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52, had been improperly applied leading to an “error of law”. At the risk of repetition, Leeming JA’s finding that Mr Sinanovic failed to establish some vitiating factor to warrant departure from the ordinary significance of his signature on a legal document has not been shown to be arguably incorrect.

    2. (2)

       The cost of litigation — that the applicant should have “been granted his opportunity to be heard and determined in NCAT in his application RT 19/22489 dated 14 May 2019”.

    3. (3)

       That the “proposed appeal is a matter of public importance”, as it “affects many people with disabilities” who are “faced with uncertainty and fear in entering contracts” and “face prejudices within the judicial system”.

18. [59]

    These assertions are reiterations of complaints earlier dealt with. They were not matters raised before Leeming JA. No issue of principle, question of general public importance or an injustice which is reasonably clear has been shown.

Orders

1. [60]

   The orders of the Court are:

   1. (1)

      Leave to appeal refused.

   2. (2)

      Applicant to pay the respondent’s costs.