Oxford (NSW) Pty Ltd v KR Properties Global Pty Ltd trading as AK Properties Group ABN 62 971 068 965 (No 5)

I have published four judgments in these proceedings. [1] I shall use the same abbreviations here.

On 15 August 2023, I made final orders as follows: [2]

Now, by Notice of Motion filed on 28 August 2023, Mr Kazzi seeks an order that orders 5 and 9 made on 15 August 2023 be set aside pursuant to UCPR r 36.16(3A). Mr Kazzi agrees that I should determine the question on the papers.

Orders 5 and 9 were that Mr Kazzi pay the Owners’ costs of the proceedings and interest on those costs.

At [24] of my 28 July 2023 judgment, [3] I invited submissions as to costs, as to any further matters requiring determination and as to the orders necessary to finalise the proceedings.

On 4 August 2023, Mr Horowitz, who appeared for the Owners, sent an email to my associate stating that he and Ms Cameron, who appeared for the Builder and Mr Kazzi, had agreed the timetable to which I referred at [3] of my 15 August 2023 judgment, [4] namely that:

In his affidavit of 28 August 2023 sworn in support of Mr Kazzi’s Notice of Motion of that date, the solicitor for the Builder and Mr Kazzi, Mr Christopher Nehme, stated that on 9 August 2023, Mr Kazzi had instructed him that “he was seeking alternative legal advice and directed [him] to cease all work on behalf of Mr Kazzi and [the Builder]”.

As I set out at [4] of my 15 August 2023 judgment, [5] on 11 August 2023 I was informed by the solicitor for the Owners that, despite the agreed timetable to which I have referred at [6] above, they had not heard from the solicitor for the Builder and Mr Kazzi in relation to the preparation of a joint set of final orders. The Owners’ solicitor provided a copy of the final orders proposed by the Owners and, on 14 August 2023, submissions in support of those orders.

Mr Nehme has deposed that, also on 14 August 2023, he received a letter from a solicitor from Voros Lawyers which stated:

The allegation that Mr Lynch SC “made concessions and admissions without instructions which gave rise to a personal order against Mr Kazzi” was, I assume, a reference to the matters to which I referred at [8] to [10] of my 28 July 2023 judgment, where I stated:

Of course, I do not know, and express no view about, whether Mr Lynch made the “concessions and admissions” without instructions. The wider point is that a lawyer retained to conduct legal proceedings has implied authority to make admissions against interest, particularly where, as here, the admissions were made in relation to issues directly in contest in the litigation. [8]

As I set out in my 15 August 2023 judgment, having received the Owners’ proposed final orders, and their submissions in support of those orders, and having heard nothing from the Builder and Mr Kazzi in relation to that matter, I made the orders that I have set out above.

Mr Nehme has deposed:

Rule 101 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) obliges barristers to refuse to retain a brief in a number of circumstances, including where the barrister has reasonable grounds to believe that he or she may, as a real possibility, be a witness in the case. [9]

Following receipt of the Notice of Motion of 28 August 2023 and Mr Nehme’s affidavit, I invited submissions in support of the orders sought in that Notice of Motion.

I have now received those submissions.

As I have set out, the Notice of Motion of 28 August 2023 seeks an order setting aside the relevant orders under UCPR r 36.16(3A) which provides:

However, in the submissions I have received on behalf of Mr Kazzi it is stated:

Those submissions continued:

I do not see these matters as warranting the setting aside of the orders I made on 15 August 2023.

I doubt that my orders concerning Mr Kazzi’s obligation to pay costs were made in Mr Kazzi’s “absence” for the purposes of UCPR r 36.16(2)(b). “Absence” requires more than a party to have physical absence when the order was made; “there must be some added factor that makes it unjust for the order to stand”. [10] Here, it was agreed that the question of the form of the final orders would be determined on the papers, and Mr Kazzi, by his counsel, agreed to the directions in accordance with which submissions would be made on that question. As Mr Kazzi accepts, he failed to comply with the directions to which he, by his counsel, had consented.

In any event, Mr Kazzi’s explanation for any such “absence” is unsatisfactory.

The Court “will not usually exercise its discretion to set aside a judgment that was regularly obtained where the applicant had notice of the hearing and chose not to appear”. [11]

That is what happened here.

It is not clear whether Mr Kazzi was personally aware of the agreement between counsel of which I was informed on 4 August 2023. But he was bound by the decision of his counsel to reach that agreement and by the decision taken on his behalf to make submissions as to the form of the orders to be made in these proceedings on the basis of the timetable that I have set out at [6] above. The evidence also does not make clear whether Mr Kazzi was told that his 9 August 2023 instructions to “cease all work” would mean that his legal representatives could not comply with that timetable. It does appear that, at least by 15 August 2023, Mr Kazzi was aware that there was a “dispute as to the orders made by the Court”. [12]

The fact remains that, by giving his solicitors instructions to cease work at the critical time, Mr Kazzi in effect chose not to participate in the process for the making of submissions to which he, through his legal representatives, had agreed.

Further, it appears from the submissions at [19] above that Mr Kazzi wishes to argue that the Owners’ “limited” success on the Cross-Claim against Mr Kazzi “arose from a concession made by senior counsel” for the Builder and Mr Kazzi. Determination of that issue would necessitate an investigation by me of the merits of that contention, a matter which may well involve contested evidence, [13] and one entirely inappropriate at this stage of the proceedings.

In addition to these matters, the Owners should not further be vexed in these proceedings. The position Mr Kazzi now finds himself in is a result of what he accepts to be his own non-compliance with the Court’s directions which were made with the consent of his legal representatives.

The plaintiff’s/cross-defendants’ Notice of Motion of 28 August 2023 is dismissed with costs.