ACES Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia (No 3)

THE COURT: On 27 November 2014, this Court dismissed the substantive appeal: ACES Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia [2014] NSWCA 402. On 12 December 2014, this Court published a further judgment, dealing with whether any further steps should be taken in relation to a serious irregularity in connection with the preparation and conduct of the appeal, namely the inclusion in the appeal books of documents not before the primary judge, on which the appellants expressly relied, without advising the Court of that fact. The Court recorded its conclusion that Mr Charara had not adhered to the standards expected of those who appear before it, but, in light of his evidence that he had no intention to mislead the Court or interfere with its processes, determined that the matter not be referred for further investigation: ACES Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia (No 2) [2014] NSWCA 431 at [19].

By notice of motion filed 6 January 2015, Mr Charara seeks an order, pursuant to UCPR r 36.17, that the judgment be revised to include “the documents that were omitted from Jamal Charara submissions date 28 November 2014” [sic]. The parties filed written submissions (on 9 and 17 February 2015). Neither sought to be heard orally.

The Court’s order made on 27 November 2014 authorised Mr Charara “by written submission and/or affidavit filed and served within 14 days of today” to provide an explanation for how the appeal papers came to include material not before the primary judge. Mr Charara availed himself of that opportunity. He filed, on 28 November 2014, a three page document entitled “Jamal Charara’s submissions by leave COA#2013/291031”. The first page of the submissions identified four further documents which were attached: an affidavit of Mr Sogutlu dated 28 November 2014, an affidavit of Mr Charara dated 11 August 2014, an ex tempore judgment of Young AJ dated 28 May 2014 and some transcripts relating to the Bank’s valuer dated 27 May 2013. The submission included a statement that “I rely on all the evidence I have attached herewith”.

The Court’s reasons in its second judgment identified the documents filed by Mr Charara at [5]. Paragraph 6 summarised aspects of Mr Sogutlu’s affidavit, and paragraph 11 reproduced parts of Mr Charara’s affidavit. Paragraph 14 is what has given rise to this motion. It is in the following terms:

Mr Charara’s motion, and his submissions in support, seek to invoke this Court’s jurisdiction under the “slip rule”. He submitted that the statement that he relied on all the evidence he had attached herewith “effectively made all the attached documents to be the entirety of the submission dated 28 November 2014”. He submitted that the statement in the Court’s reasons at [14] was misleading and not correct, because it did not include the sworn admission from Mr Sogutlu that “exonerated” Mr Charara. He submitted that Mr Sogutlu’s affidavit “goes to the heart of the allegation that was made against” Mr Charara. The submission then (at paragraphs 15-17) stated:

There are two reasons why this application must be refused. First, there was no “clerical mistake” or “accidental slip or omission” within the meaning of r 36.17. The submissions to the Court expressly distinguished what was advanced by way of submission, and evidentiary materials served in support of those submissions. The Court’s reasons, no differently from the orders made on 27 November 2014, employed the same distinction. There is no inaccuracy or error requiring correction.

Secondly, the gravamen of Mr Charara’s complaint is that the Court’s judgment does not annex the exculpatory affidavit made by Mr Sogutlu. However, there was, in the Court’s reasons (although not annexed to those reasons) a summary of the evidence sworn by Mr Sogutlu to which Mr Charara had drawn attention. The critical paragraphs of Mr Sogutlu’s affidavit, paragraphs 7, 8, 9 and 11, were reproduced in full. Mr Sogutlu’s statements that he carefully explained what he was doing to the Bank’s solicitors (which was denied by them) were addressed in terms in the reasons. In short, the “sworn admission from Ercan Sogutlu that exonerated [Mr Charara]” which Mr Charara seeks to have annexed to the judgment is already reproduced in full in the Court’s reasons.

None of this is mentioned, let alone grappled with, in Mr Charara’s submissions. No one could read the Court’s reasons without appreciating that there was evidence asserting that the material had been inserted by Mr Sogutlu, not Mr Charara, and claiming that Mr Sogutlu had alerted the Bank’s solicitors of that fact. There is no basis for submitting that there has been any “hiding the evidence behind the curtain”.

The notice of motion must be dismissed. The respondent Bank filed brief submissions for the assistance of the Court, but did not wished to be heard either in favour of or against the relief sought. In the circumstances, there should not be any order as to costs.