Aflak v Mowad

[2015] NSWDC 432

District Court

New South Wales

Medium Neutral Citation:	Aflak v Mowad [2015] NSWDC 432
Hearing dates:	6 November 2015
Date of orders:	06 November 2015
Decision date:	06 November 2015
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1)   Set aside the subpoenas referred to in paragraph 1 of the notice of motion filed by the plaintiff on 8 October 2015 on the condition that the plaintiff produce documents to the defendants in accordance with its offer in the letter dated 8 September 2015 within 14 days of the defendants obtaining the leave referred to in order 1 made by the Judicial Registrar on 12 October 2015 or are otherwise relieved of the consequences of that order. (2)   Direct the defendants by 27 November 2015 to file a notice of motion returnable 4 December 2015 together with supporting evidence to obtain leave under or seek relief from the consequences of order 1 made on 12 October 2015, that evidence to include the evidence-in-chief in the defence and the cross-claim on which the defendants propose to rely. (3)   Order the defendants to pay the plaintiff’s costs of the notice of motion. (4)   In the event that there is further default by the defendants, grant leave to the plaintiff to apply for an order that the costs in order (3) be assessed forthwith. (5)   Stand the matter over for directions and the hearing of the motion referred to in order (2) on Friday, 4 December 2015 at 9.30am before the Judicial Registrar.
Catchwords:	CIVIL PROCEDURE — subpoenas — application to set aside – concession regarding limited production – party issuing subpoena in default – costs – indemnity costs
Legislation Cited:	Contracts Review Act 1980
Category:	Procedural and other rulings
Parties:	Bassam Aflak (plaintiff) Anthony Mowad (first defendant) Antoinette Mowad (second defendant)
Representation:	Counsel: Mr D Hand (plaintiff)   Solicitors: Webb Thom & Associates (plaintiff) Evangelos Patakas & Associates (defendants)
File Number(s):	2015/98343
Publication restriction:	None

Judgment

1. The plaintiff, Bassam Aflak, says he lent $70,000 to the defendants, Anthony Mowad and Antoinette Mowad, in 2004, which he says was acknowledged in a deed on 7 June 2011. Mr Aflak commenced proceedings in the Local Court to recover the outstanding moneys, the principal amount outstanding being approximately $55,000. In September 2013, those proceedings were removed to this Court, by consent, as other proceedings commenced by companies related to Mr Aflak against companies related to Mr and Mrs Mowad, for a larger sum of money, were pending in this Court.

2. Mr and Mrs Mowad raise a number of defences to Mr Aflak’s claim, including the identity of the proper parties, whether the loan was repaid and whether they are entitled to relief under the Contracts Review Act 1980.

3. In the motion before me today, Mr Aflak seeks to set aside several subpoenas issued by Mr and Mrs Mowad to several companies related to Mr Aflak. The subpoenas are in wide terms: they seek documents from 1999 to 2013, and are not limited to confined categories but appear to include all the financial records of various companies.

4. There is another matter of significance: Mr and Mrs Mowad are in default of at least two orders for the filing of their evidence. On 31 August 2015 an order was made which provided for an extension of time for Mr and Mrs Mowad to file their evidence, thereby suggesting an earlier order in respect of their evidence. On 12 October 2015 Mr and Mrs Mowad were the subject of an order in these terms:

“The Defendants/Cross-Claimants are to serve their evidence in response in respect of the Plaintiff’s claim on or before 27 October 2015, failing which the Defendants/Cross-Claimants may not rely on any evidence in respect of the Plaintiff’s claim at the hearing without leave of the Court.”

By reason of this order, Mr and Mrs Mowad are in default and are also precluded from relying upon any evidence. They submit that they were unaware of the terms of that order, that the guillotine component of the order was deleted, and that they may be entitled to some relief under the slip rule. On any view, they remain in default and have given no satisfactory explanation as to why they are in default. Nor have they given reasons for the delay in the service of their evidence. Further, they have made no application to amend the order that has been made, and have made no application for leave to rely on further evidence. Such an application might have difficulties in the absence of the evidence being ready to be filed.

5. Thus, according to orders made, Mr and Mrs Mowad are not presently entitled to file or rely upon any evidence, perhaps a sufficient reason of itself to set aside the subpoenas.

6. The matter is complicated by the circumstance that there are the two proceedings which, although not consolidated, are to be heard together. Many of the documents sought in the subpoenas were conceded by Mr and Mrs Mowad to be irrelevant to the issues in these proceedings, but are asserted to be relevant to the issues in the other proceedings.

7. In the circumstances, I was minded to set aside the subpoenas without prejudice to Mr and Mrs Mowad to issue new subpoenas after, and in the event that, they had cured their default and obtained leave to file further evidence. However, I was directed to an offer in 2015 made by Mr Aflak in respect of production which contemplated a limited answer to the subpoenas in return for Mr and Mrs Mowad “immediately [withdrawing] the balance of the subpoena” and paying the costs of compliance with the subpoenas. Mr Aflak remained prepared to produce documents in accordance with his letter dated 8 September 2015, notwithstanding that production might involve documents dated in 1999 or 2000.

8. I propose to accept Mr Aflak’s concession about production, and set aside the subpoenas on the undertaking of Mr Aflak to produce documents in accordance with his offer in a letter dated 8 September 2015. However, I am not minded to require Mr Aflak to do that until such time as Mr and Mrs Mowad have cured the default and obtained relief from the consequences of order 1 made on 12 October 2015.

9. The recipients of the subpoenas may be entitled to the cost of compliance in accordance with the rules but that is not part of the application before me today. Those recipients remain able to make such an application. Mr Aflak is entitled to the costs of the notice of motion today, particularly in view of his offer.

10. Mr Aflak, somewhat faintly, sought an order that the costs be paid on an indemnity basis. I am not persuaded that such an order should be made. Some of the documents were accepted by Mr Aflak to be able to be produced and Mr Aflak was willing to do so. The conduct of a party in default issuing an excessively wide subpoena does not of itself warrant an indemnity costs order in Mr Aflak’s favour.

11. Accordingly, the orders of the Court are:

1. Set aside the subpoenas referred to in paragraph 1 of the notice of motion filed by the plaintiff on 8 October 2015 on the condition that the plaintiff produce documents to the defendants in accordance with its offer in the letter dated 8 September 2015 within 14 days of the defendants obtaining the leave referred to in order 1 made by the Judicial Registrar on 12 October 2015 or are otherwise relieved of the consequences of that order.

2. Direct the defendants by 27 November 2015 to file a notice of motion returnable 4 December 2015 together with supporting evidence to obtain leave under or seek relief from the consequences of order 1 made on 12 October 2015, that evidence to include the evidence-in-chief in the defence and the cross-claim on which the defendants propose to rely.

3. Order the defendants to pay the plaintiff’s costs of the notice of motion.

4. In the event that there is further default by the defendants, grant leave to the plaintiff to apply for an order that the costs in order (3) be assessed forthwith.

5. Stand the matter over for directions and the hearing of the motion referred to in order (2) on Friday, 4 December 2015 at 9.30am before the Judicial Registrar.

**********

Decision last updated: 11 July 2018