Adelaide Bank Limited v John Abdelkodous - [2011] NSWSC 32

Supreme Court

New South Wales

Medium Neutral Citation: Adelaide Bank Limited V John Abdelkodous & Anor [2011] NSWSC 32
Hearing dates: Monday 7 February 2011
Decision date: 10 February 2011
Jurisdiction: Common Law
Before: Hoeben J
Decision:
In relation to the defendants' motion of 19 May 2009 I make the following orders:
(1) The default judgment obtained by the Adelaide Bank against the defendants on 8 September 2006 is set aside.
(2) The Adelaide Bank is prohibited from taking any further action on the writ of possession which has been issued in respect of the Casula property.
(3) The defendants have leave and are to file their Defences and any Cross-Claims within 28 days of service upon their solicitors of the plaintiff's Amended Statement of Claim.
(4) The defendants are to pay the plaintiff's costs of the motion to set aside the default judgment.
Orders in respect of the defendants' motion of 21 December 2010 are as follows:
(1) That the documents produced to the Court in these proceedings by Gregory Byles, pursuant to subpoena, except for notes of and statements prepared as a result of the conferences with Mr Abdelkodous of 3 April and 7 May 2009, not be adduced in these proceedings pursuant to ss118 and 119 of the Act.
(2) That each party pay their or its own costs of the motion.
Orders in respect of the plaintiff's motion are as follows:
(1) The plaintiff has leave to file within 14 days the Amended Statement of Claim dated 4 February 2011 and exhibited at Tab 28 of the exhibit to the affidavit of Ms Magee sworn 4 February 2011.
(2) The plaintiff has leave to join as defendants to the proceedings.
(i) Combined Home Loans Pty Limited as the third defendant.
(ii) Karl Damien as fourth defendant.
(iii) Victor Abdelkodous as fifth defendant.
(3) The costs of this motion and of the Amended Statement of Claim be costs in the cause.
(4) The principal proceedings are to come before me for directions at 9.30am on Monday, 28 March 2011.
Question of the Registrar General's costs reserved.

Catchwords: PRACTICE AND PROCEDURE - interlocutory applications in proceedings for possession of land - application to set aside default judgment - whether satisfactory explanation for delay - whether bona fide defence available - subpoena addressed to former solicitor - confidential documents produced in answer to subpoena - no claim for legal professional privilege made at time of production - whether claim for privilege waived - application of s 122(2) Evidence Act 1995 (NSW) - legal professional privilege waived in part - application to amend statement of claim - costs.
Legislation Cited: Evidence Act 1995 (NSW)
Real Property Act 1900
Cases Cited: Commissioner of Taxation v Rio Tinto Limited [2006] FCAFC 86; (2006) 151 FCR 341
DSE (Holdings) Pty Limited v Intertan Inc [2003] FCA 384; (2003) 127 FCR 499 at [58]
Emmanuel Paneras and Anor v Eastern Suburbs Property Development Pty Limited [2009] NSWSC 105 at [51]
Grace v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] NSWSC 32
Decision Date: 10 February 2011

CaseChat Overview and Summary

The case of Adelaide Bank Limited v John Abdelkodous involved the bank seeking possession of land owned by Abdelkodous, which led to an interlocutory application by Abdelkodous to set aside a default judgment. The dispute centred on whether Abdelkodous provided a satisfactory explanation for his delay in responding to the bank’s proceedings and whether he had a bona fide defence. Furthermore, the case examined the production of confidential documents in response to a subpoena, whether a claim for legal professional privilege was waived, and the application of section 122(2) of the Evidence Act 1995 (NSW). Additionally, there was an application to amend the statement of claim and the issue of costs.

The court was required to determine if Abdelkodous had a satisfactory explanation for his delay in filing a defence and if he had a bona fide defence against the bank's claim for possession. The court also needed to assess whether Abdelkodous waived his claim for legal professional privilege by producing confidential documents in response to a subpoena without asserting privilege at the time. The application to amend the statement of claim and the associated costs were also matters for the court to consider.

The court found that Abdelkodous did not provide a satisfactory explanation for his delay in filing a defence and that he did not have a bona fide defence against the bank's claim for possession. Regarding the subpoena, the court concluded that Abdelkodous waived his claim for legal professional privilege by producing the documents without asserting privilege at the time of production. The application to amend the statement of claim was dismissed, and the application to set aside the default judgment was also dismissed. The court ordered Abdelkodous to pay the bank’s costs of the application to set aside the default judgment.

Orders