Steven Murabito t/as Propertylink Group v Abourjaily

1. [1]

   HER HONOUR: By summons filed 22 December 2016, the plaintiffs seek to appeal the whole of the decision of her Honour Magistrate Keogh dated 24 November 2016. The plaintiff seek orders firstly, that the appeal be allowed; secondly, that the judgment of the Local Court be set aside; and finally, that the first and second plaintiffs be granted leave to file a further amended defence or that the Local Court be ordered to lawfully consider granting such leave.

2. [2]

   The first plaintiff is Steven Murabito t/as Propertylink Group. The second plaintiff is Steven Murabito. Steven Murabito is a director and licensee of Propertylink Group Pty Ltd. The first defendant is Adel Abourjaily. The second defendant is Emilia Haddad-Abourjaily. The third defendant is Giovanni Enzo Boggio Alania. The fourth defendant is Fiona Jane Boggio Alania. The fifth defendant is Patricia Ikonomou. The sixth defendant is Mohsen Raoufi. The seventh defendant is Graham Robert Benjamin. The eighth defendant is Christine Margaret Anne. The ninth defendant is Peter Garret Holt. The tenth defendant is Cassandra Kemmie O’Neill. The eleventh defendant is David Michael Timewell. The twelfth defendant is Claire Tracy Timewell. The first to twelfth defendants were the plaintiffs in the Local Court proceedings. (I shall refer to them as the defendants). The plaintiffs in the Local Court are the defendants in this Court. Likewise, the defendants in the Local Court are the plaintiffs in this Court.

3. [3]

   At the hearing of this appeal the plaintiffs were legally represented. The defendants were not as they did not have the funds to employ legal representation. With the consent of the other defendants Ms Patricia Ikonomou represented them.

4. [4]

   The plaintiffs relied upon the affidavits of Steven Samuel Murabito dated 26 May 2017. As there are three affidavits by him dated 26 May 2017, I have marked the one relied upon as MFI - 1. At the outset of the trial, copies of the pleadings in the Local Court, namely the statement of claim filed 31 August 2016 (Ex A), the first defendant’s defence filed 28 September 2016, the first defendant’s amended defence filed 1 November 2016, the first defendant’s further amended defence dated 2 November 2016 (Ex B) and a copy of the defence of the second defendant filed 1 November 2016 (Ex C) were obtained. The parties did not have a copy of the notice of motion seeking summary that was filed in the Local Court so it is not before this Court.

5. [5]

   On 24 November 2016, the Magistrate granted summary judgment in favour of the plaintiffs in the amount of $45,000 plus filing fees, service fees and solicitor’s fees on filing. The Magistrate also made a costs order that the pay the plaintiffs’ costs on an indemnity basis as agreed or assessed.

Grounds of appeal

1. [6]

   The grounds of appeal are that:

2. [7]

   It is debatable whether leave to appeal is required as the proceedings have been summarily dismissed and are therefore now at an end. In these circumstances, I grant leave to appeal should it be required.

Prior proceedings in this Court

1. [8]

   In proceedings 2015/174134, the plaintiffs Adel Abourjaily, Emilia Haddad-Abourjaily, Giovanni Enzo Boggio Alania, Fiona Jane Boggio Alania, Patricia Ikonomou, Mohsen Raoufi, Graham Robert Benjamin, Christine Margaret Anne, Peter Garret Holt, Cassandra Kemmie O’Neill, David Michael Timewell and Claire Tracy Timewell commenced proceedings against Parkview Estate Ltd. On 28 April 2016, Darke J made an order that Parkview Estate pay the costs of the notice of motion on an indemnity basis. (Tab J, p 51 Order 8 – Defendants’ Court Book).

The pleadings in the Local Court

1. [9]

   By statement of claim (“S/C”) filed 31 August 2016, the defendants sought to enforce payment of a deed arising from an indemnity costs order made in the Supreme Court in proceedings 2015/174134.

2. [10]

   Paragraphs [4] to [9] of the S/C plead:

3. [11]

   In the defence of the first defendant filed 28 September 2016, the first defendant admits paragraphs [4] and [5] of the S/C. At [6] of the defence, the first defendant denies that it is in breach of the deed but admitted it did not make any instalment payments. This is similar to the pleading in the defence of the second defendant.

4. [12]

   At [12] to [18] the first defendant’s defence pleads:

5. [13]

   In the amended defence (“AD”) filed 1 November 2016, the first defendant does not admit S/C [5]. At AD [6] it denies the term of the deed and admits that both the first and second defendants did not make any instalment payments under the deed. At AD [9] the first defendant denies paragraph [9] of the S/C. Paragraphs [10] to [18] of the earlier defence have been deleted.

6. [14]

   In the further amended defence dated 2 November 2016 (the latest filed version of the defence), the first defendant does not actually plead anything.

7. [15]

   The principles according to which this court is to decide whether the Magistrate’s discretionary decisions to refuse both the first application for an adjournment; and secondly, leave to the first defendant to file a further amended defence constitutes an error of law, are stated definitively in a short passage in the joint judgment of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505. It is, I think, useful to re-state them. They are as follows:

The Magistrate’s decision

1. [16]

   The second defendant applied for an adjournment on behalf of the first defendant and himself at the hearing in the Local Court. He stated (T1.31-35):

2. [17]

   The second defendant had served a copy of his affidavit dated 23 November 2016 on the plaintiffs’ solicitor Mr Jake Marshall, but had not served him with a copy of the amended defence. The contents of the second defendant’s affidavit does not address why an adjournment should have be granted. Mr Marshall informed the Magistrate that there had been multiple amended defences filed in the proceedings and that none of them actually contain a valid defence. The second defendant replied that the plaintiffs’ solicitor had contacted him about settlement and led him to believe that the plaintiffs were going to settle. (T2.4-9).

3. [18]

   Her Honour stated at T3.20-28:

4. [19]

   The second defendant stated at T3.43-49:

5. [20]

   Her Honour observed that there was no notice of motion before her seeking to file a further amended defence. (T4.21-24).

6. [21]

   Her Honour explained at T6.25-29:

7. [22]

   The second defendant responded that he received the notice of motion seeking summary judgment (served by way of substituted service) in late November 2016. He then conceded that it was in “Late or mid November” as he was away from Sydney until 15 November 2016 and he was expecting his solicitor Mr Bouzanis of Hodge Lawyers to come back from illness. (T5-T7). However, on 14 October 2016 that solicitor had filed a notice of discontinuance. The second defendant then stated that he had finally got in contact with a local solicitor who could not make it to court on that day. Finally, he made an allegation that Mr Marshall had made a misleading statement. (T8.42-50).

8. [23]

   Then Mr Marshall on behalf of the plaintiffs submitted (T9.23-33) that:

9. [24]

   In refusing the adjournment application the Magistrate in her ex tempore decision stated at T11.14-47:

The legal principles in relation to adjournments

1. [25]

   Counsel for the plaintiff referred to ss 56, 57 58 and 66 of the Civil Procedure Act 2005 (NSW) that relevantly read:

2. [26]

   Counsel for the plaintiffs referred to Corporate Affairs Commission v Solomon [1989] NSWCA, unreported 1 November 1989 (“Solomon”); Titan v Babic (1994) 126 ALR 455; and Reisner v Bratt [2004] NSWCA 22. These cases were all decided before the introduction of the Civil Procedure Act. While the principles remain the same, the considerations set out in ss 56 to 58 of the Civil Procedure Act are now also applicable.

3. [27]

   In particular, counsel for the plaintiffs submitted that the Magistrate should have adopted the approach set out in Solomon. In Solomon, the primary judge had refused an adjournment. On appeal Mahoney JA was satisfied that there was nothing before the court to indicate that the grounds of appeal or complaints had any or the appropriate likelihood of success and that no evidence had been put before the court in that regard.

4. [28]

   Mahoney JA stated:

5. [29]

   Mahoney JA then made the following order:

6. [30]

   In other words, conditional leave was granted for the appellant to file a notice of appeal subject to being first submitted to a judge of the Court of Appeal and it cannot be accepted for filing unless the judge is of the opinion that it is appropriate.

7. [31]

   In Hamod v State of New South Wales [2011] NSWCA 375, the Court of Appeal, Beazley JA, (with Giles and Whealy JJA agreeing), reviewed the principles to be considered in deciding whether an adjournment should be granted. The trial judge had refused an adjournment by a self-represented litigant part way through the hearing. The Court of Appeal referred to Aon Risk Services Australia Ltd v Australian National University [2007] HCA 27 and stated “In Aon, the Court was dealing with the rules of the Supreme Court of the ACT”, they are similar to those of the Supreme Court of New South Wales.

8. [32]

   In Hamod, Beazley JA stated at [139] to [145]:

9. [33]

   In this appeal, counsel for the plaintiff made oral submissions that the requirements of case management in the circumstances, particularly when dealing with a self represented litigant, require more than just consideration to the form and the procedural technicalities, but rather the substance of the argument. (T21.6-27). He submitted that it would have been appropriate, in the circumstances, for her Honour to have granted a further brief adjournment in order for Mr Murabito to be able to have one last chance to put on a proper defence. He contended that there is nothing in the transcript to indicate wanton or repeated or really significant non compliance by Mr Murabito with the orders of the court. Finally, he submitted that there was no submission made by Mr Marshall, for the plaintiffs below, that there would be any irreparable prejudice that would flow from a brief adjournment nor any consideration to the question of whether or not costs would be sufficient to deal with any adjournment.

10. [34]

    The defendants had already filed three versions of their defence, the first original defence being filed on 28 September 2016, when the defendants had the benefit of legal representation. The second defendant had also filed a defence. The defendants had more than adequate opportunities to file their defences. The defendants’ reasons for seeking an adjournment were set out by the Magistrate. Her Honour referred to the fact that Owen Hodge Lawyers filed a notice of ceasing to act and since 2 November 2016, when the matter came before the Registrar, the defendants had had an opportunity to respond to the notice of motion for summary judgment.

11. [35]

    Her Honour pointed out that the second defendant did not explain why he had not obtained representation in the meantime nor what difficulties he had had experienced in responding to the notice of motion other than he was self represented. After indicating that his solicitor Mr Bouzanis had been ill, the second defendant then clarified saying that he had in fact another firm of solicitors who just could not make it to court on that day. However, her Honour stated that this did not explain why there had been a complete failure to respond to the notice of motion.

12. [36]

    I accept that ordering costs against the party seeking an adjournment as well as whether prejudice is caused to the other party are factors that may be taken into account in deciding whether to exercise the discretion to grant an adjournment. These proceedings concern the enforcement of a deed where upon all versions of the defences, the instalments have not been paid. The defendants’ explanations for not filing the defence they wanted to rely upon were unconvincing and not supported by any evidence. The Magistrate dealt with the substance of the defendants’ submissions and did not just consider the procedural requirements. The plaintiffs had been deprived of the funds payable under the deed for some time. In my view the Magistrate took into account the relevant matters in order to determine the dictates of justice when refusing to grant an adjournment and refusing to allow the defendants a further opportunity to file a second further amended defence. This ground of appeal fails.

Summary judgment

1. [37]

   The submission in relation to the adjournment (set out earlier in this judgment) was also made in deciding whether or not to take the extreme step of effectively bringing the proceedings to an end and granting summary judgment.

2. [38]

   Rule 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) provides that the Court may dismiss proceedings generally, or in relation to any claim for relief, in three circumstances. These are, if the proceedings are frivolous or vexatious, or if no reasonable cause of action is disclosed, or if the proceedings are an abuse of the process of the court.

3. [39]

   UCPR 14.28(1) provides that the Court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading firstly, discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, secondly, has a tendency to cause prejudice, embarrassment or delay in the proceedings, or thirdly, is otherwise an abuse of the process of the court.

4. [40]

   UCPR 14.28(2) provides that the court may receive evidence on the hearing of an application for an order under subrule (1).

5. [41]

   In O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71 the Court of Appeal applied the High Court decision of Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118.

6. [42]

   In the Local Court Mr Marshall, the solicitor for the plaintiffs moved on their motion for summary judgment dated 31 October 2016 and relied upon his supporting affidavit dated 23 November 2016 (his earlier affidavit). He outlined the pleadings in the defences (set out earlier in this judgment).

7. [43]

   In so far as summary judgment is concerned, the Magistrate at (T13.47-50; T14.1-6) stated:

8. [44]

   The Magistrate allowed the second defendant to make submissions as to essentially the matters raised in the defendants’ second proposed second further amended defence that she had not granted leave to be filed.

9. [45]

   On this topic the following exchanges took place (T14-T17):

10. [46]

    Her Honour concluded:

Conclusion

1. [47]

   The plaintiffs were seeking to enforce a deed. While they were not legally represented when they signed the deed, they had the benefit of legal advice by do so. (see letter from Mr Bouzanis to Joel Marshall dated 15/0/6/2016 – Tab C, p 27 – Defendants’ Court Book). The defendants admitted they had not made payments of the instalments due under the deed.

2. [48]

   The last further amended defence filed actually raised no defence at all. Nevertheless, her Honour heard oral evidence from the second defendant to ascertain whether there was an arguable defence by the defendants in this latest version. Her Honour allowed the second defendant in oral submissions to raise the issue set out in the defence he was not permitted to file.

3. [49]

   The Magistrate applied the correct law on summary judgment and was satisfied that there really was no defence.

4. [50]

   In these circumstances, the Magistrate allowed the defendants to make oral submissions that addressed the matters raised in the defence they intended to file. The second defendant stated that he had been dealing with Adel Haddad-Abourjaily and Emilia Haddad-Abourjaily and he never dealt with these people and he could demonstrate all of that. (T15.14-17). In my view the Magistrate did not deny the defendants procedural fairness. While the test for summary judgment is a demanding one, it is my view that she was entitled to come to the conclusion that the defendants really had no arguable defence. Her Honour did not make an error in exercising her discretion to disallow the defendants’ adjournment application and their application to file a second further amended defence, nor did she make an error in ordering summary judgment. This ground of appeal fails.

5. [51]

   The result is that this appeal is dismissed. The decision of her Honour Magistrate Keogh dated 24 November 2016 is affirmed. The summons dated 22 December 2016 is dismissed.

6. [52]

   Costs are discretionary. Costs usually follow the event. The plaintiffs are to pay the defendants’ costs on an ordinary basis.