Ahmed v Ahmed [Final] - [2022] NSWSC 1003

Supreme Court

New South Wales

Medium Neutral Citation: Ahmed v Ahmed [Final] [2022] NSWSC 1003
Hearing dates: 26 July 2022
Decision date: 26 July 2022
Jurisdiction: Equity - Real Property List
Before: Hammerschlag CJ in Eq
Decision:
Adjournment refused – proceedings dismissed – order for withdrawal of caveat made

Catchwords:
PRACTICE AND PROCEDURE – final hearing – application for adjournment – where plaintiff has failed to comply with directions to file and serve a statement of claim which complies with the Uniform Civil Procedure Rules 2005 (NSW) in circumstances where he apparently wishes to allege fraud and conspiracy – where the Court considers that he will not comply with this requirement – where the plaintiff’s application to appear at the final hearing remotely has been refused and the Court is not persuaded that he will travel to Australia for the hearing – where the Court considers an adjournment to be inutile – HELD – adjournment refused – where principal proceedings involve extension of a caveat claiming a 50 per cent interest in land and the defendant undertakes to the Court to pay 50 per cent of the net proceeds of sale of the land into Court for the plaintiff’s benefit or to the plaintiff – proceedings dismissed – order for withdrawal of caveat made

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Turan Ahmed v Ziynet Ahmed [2022] NSWSC 921

Category: Procedural rulings
Parties: Turan Ahmed - Plaintiff
Ziynet Ahmed - Defendant
Representation: N/A

File Number(s): 2021/360890

ex tempore JUDGMENT

HIS HONOUR: Some of the procedural history of this case is set out in my judgment handed down on 8 July 2022 refusing the plaintiff, who lives in the United Kingdom, leave to conduct the proceedings by video link: Turan Ahmed v Ziynet Ahmed [2022] NSWSC 921 (the AVL judgment). He proposed to appear himself, without legal representation, at the final hearing referred to below.
Definitions in the AVL judgment are used here.
On 3 June 2022, the Registrar in Equity fixed the proceedings for final hearing to commence on 26 July 2022 on an estimate of two days. The Registrar made a modified usual order for hearing (see Practice Note SC Eq 1).
As observed in the AVL judgment at [17], on 25 February 2022 the plaintiff was directed to file and serve an amended statement of claim that complies with the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). He still has not done so. At [38], I pointed out that the plaintiff should contemplate the possibility that if, by the hearing, he has not complied with this requirement the Court may consider dismissing the proceedings in accordance with s 61(3) of the Civil Procedure Act 2005 (NSW), which gives the Court power, amongst others, to dismiss proceedings when a direction has been given and not complied with. A case such as this one cannot properly be tried without an adequate pleading.
On 20 April 2022, the Senior…

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.

Continue reading Ahmed v Ahmed [Final]

Details

AGLC: Ahmed v Ahmed [Final] [2022] NSWSC 1003
Case: [2022] NSWSC 1003
Decision Date: 26 July 2022

CaseChat Overview and Summary

The case of Ahmed v Ahmed involved a dispute concerning the extension of a caveat over a property, where the plaintiff sought a 50 per cent interest. The defendant opposed the extension and also sought to have the proceedings dismissed. The matter was before the Supreme Court of New South Wales. The plaintiff, who was residing overseas, had been ordered to file and serve a compliant statement of claim according to the Uniform Civil Procedure Rules 2005 (NSW). However, the plaintiff had failed to do so, despite multiple opportunities, and had not indicated a willingness to comply with these directions. The plaintiff also sought to appear remotely at the final hearing but was refused. The Court considered it unlikely that the plaintiff would travel to Australia for the hearing.

The legal issues before the Court were whether the plaintiff's failure to comply with the procedural requirements warranted an adjournment and, if not, whether the proceedings should be dismissed. The Court examined the implications of the plaintiff's non-compliance with the procedural directions, the plaintiff's repeated refusal to file a compliant statement of claim, and the implications of these factors for the final hearing. The Court noted that an adjournment would be futile if the plaintiff continued to refuse to comply with procedural requirements. The Court also considered the defendant's undertaking to pay 50 per cent of the net proceeds of the sale of the land into Court for the plaintiff’s benefit or directly to the plaintiff.

The Court concluded that the plaintiff's failure to comply with the procedural requirements and the refusal to file a compliant statement of claim, despite multiple opportunities, indicated that an adjournment would be inutile. The Court also noted that the plaintiff had not demonstrated any intention to travel to Australia for the hearing. Given these circumstances, the Court decided that the proceedings should be dismissed. The Court further ordered the withdrawal of the caveat and directed the defendant to pay 50 per cent of the net proceeds of the sale of the land into Court for the plaintiff's benefit or directly to the plaintiff. This decision reflected the Court's view that the plaintiff's actions had rendered the continuation of the proceedings futile and that the defendant's undertaking provided a satisfactory resolution of the plaintiff's interest in the property.

Orders