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

1. 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.

2. Definitions in the AVL judgment are used here.

3. 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).

4. 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.

5. On 20 April 2022, the Senior Deputy Registrar directed the parties to serve any further evidence by 18 May 2022. The plaintiff has not served any affidavit evidence in admissible form, although it must be observed that absent a pleading, it would not be possible to determine the admissibility of evidence.

6. Under cover of a letter dated 10 July 2022, the plaintiff provided a folder entitled “Plaintiff’s Court Book of Material Evidence”. The folder contains 508 pages. The covering letter stated that he had just received his new passport and was awaiting “Entry Visa and Flight booking”. He also stated that he was visiting the Australian High Commission in London and had written to the High Commissioner to explain the circumstances and need for an emergency visa to attend court.

7. A cursory examination of the court book reveals that little of it could be admissible to prove (or disprove) any fact which could possibly be in issue in relation to the caveat which is in issue in this case. The caveat, identification number 7703150J (the caveat), claims the following interest in the Land (title to which is registered in the name of the defendant solely):

… a one half estate or interest in the land as a joint and equal contributor with the registered proprietor to the purchase of the said land and the improvements thereon.

8. At this point I observe that the defendant offered to undertake to the Court that half of the net proceeds of the Land, which she wishes to sell, will be paid to the plaintiff. I inquired of the plaintiff whether this would satisfy him, and he made it clear that it would not and that he has a much wider case in mind connected, it seems, with fraud and conspiracy in the United Kingdom.

9. Turning back to the court book, examples of documents which it contains are:

• multiple letters to the courts (including at least one to the Lord Chief Justice of England and Wales) and other institutions in England and Australia including social services, the police, the Fraud Alert Department, the head of Fire Services NSW, and the Chief Crown Prosecutor in London. These letters make a vast range of complaints not only against the defendant but against others including of a “decade-long local area harassment campaign” against him, “nine years of mixed physical intimidation and a massive amount of mental harassment”, specific use of Australian film (Crocodile Dundee, Muriel’s Wedding and Picnic at Hanging Rock), subliminal suggestion/psychology to create his emotional attachment to Australia so as to convince of falsity of the Australian caveat, deliberate parking of a Mitsubishi Lancer opposite his home in London “as subliminal prop car”, and many others.

• photographs of the parties’ mother in what is said to be the kitchen of the Land, of the parties’ father fixing an electrical tool, of horses and cats, and of a broken vase.

• a newspaper article from The Times entitled “Women ‘more likely to hit their partners’”.

• what appears to be the version of a proposed amended statement of claim which Darke J expressly refused leave to file when the matter was before his Honour on 25 February 2022.

10. On 18 July 2022, the plaintiff forwarded to my Associate a document described as “Contents” to accompany the court book. It is a lengthy document in single spaced typing which appears to be a combination of factual assertion and argument referenced to the court book.

11. On 19 July 2022, he wrote to the Registrar (copied to my Associate) that he would be seeking a four-to-six-week postponement. The Registrar responded that he would need to file and serve a motion.

12. On 19 July 2022, he wrote the following letter to me, care of my Associate:

Case :2021/00360890 Mr Turan Ahmed v Miss Ziynet Ahmed

Re: Application for Notice of Motion to Adjourn Hearing 26/27.07.2022

Required for Various Dual Party Issues.

Your Honour,

Further informing Associate Sutton & Registrar Walton via e-mail, circumstances necessitate that I seek postponement of the scheduled Hearing, to ensure my attendance at court,

The reasons for required postponement:

Plaintiff :

1. Unable to Attend Hearing (due to travel problems to Australia)

2. Unable to Give Verbal Evidence (as required by Orders 03.06.2022 and 08.07.2022)

3. Unable to be Cross Examined

4. Requirement to file separate New Claim (Ruling of 08.07.2022) per Assertion of: - Fraud, - Concealment of Fraud, - Conspiracy of Fraud

5. Sought submission of additional material, further evidencing specific ploy to Conceal UK Fraud, using (as yet unevidenced) Australian documents.

Respondent :

1. Seeks to Refile Her Affidavit of 12.05.2022 (to include omitted page) (to be instructed by the Court)

2. Not yet provided 'Defence Court Book' to Plaintiff

3. To date provided only poorly administered evidence to Plaintiff non-paginated, very feint text, duplication of exhibit reference numbers (same pages 'served' again today on 19.07.2022; in same poor format by man unwilling to provide name, ID, or professional credentials).

Full explanation, with available material evidence to accompany application.

I thank Judge's Chambers and the Registry for its time and professional assistance.

Yours sincerely

Mr Turan Ahmed

13. On 22 July 2022, the plaintiff filed, electronically, a notice of motion seeking adjournment of “Judgement Hearing 26/27.07.2022”, together with an instrument entitled Affidavit dated 19 July 2022. The affidavit contains two paragraphs (numbered 2 and 3) which read:

2   I am the Plaintiff.

3   [witness statement for Notice of Motion to Adjourn Hearing of 26.07.2022].

14. The affidavit was accompanied by a document entitled Witness Statement, signed and dated 19 July 2022. I am prepared to treat it as if it were an affidavit.

15. The contents of the affidavit are largely but not entirely irrelevant. It contains a number of complaints of the type previously made by the plaintiff, but it does disclose steps which the plaintiff says he took to get vaccinated and obtain a passport and visa, and details of his online research with respect to an airline booking (making reference to the now-ingrained airline-sector inverse pricing policy of Ticket Cost v Travel Time). He gives details of the significant expense involved in buying an air ticket. He also makes reference to the fact that there is still much to be done “if ultimately the Judgment Hearing and Ruling is to be comprehensive and meaningful”. He says that “Primary amongst this is the required submission of a dedicated and very specific claim concerning my assertion of UK Property Fraud, Concealment of that UK Fraud using Australian Caveat, within a broader Conspiracy to Defraud; as required by His Honour’s Ruling of 08.07.2022”.

16. He seeks a four-to-six-week postponement to allow him to book well in advance and arrive in Sydney with time to decompress/acclimatise and ready himself to present his case to the Court.

17. I heard oral submissions from him and the defendant. The plaintiff appeared on zoom. The defendant was present in the courtroom.

18. Had the only issue on the application for an adjournment been an established, externally caused inability (as opposed to reluctance, inconvenience or neglect to make timeous travel arrangements) to travel to Australia to motivate his case, and had I been persuaded that he will travel to Australia for an adjourned fixture, I may have adjourned the proceedings. But I am satisfied as to neither.

19. More importantly, however, I am not persuaded that the case will ever be in a position in which the Court will be able to adjudicate it.

20. To the contrary, the previous conduct by the plaintiff of his case convinces me that he will never formulate it in a manner that complies with the UCPR and will never produce in admissible form any evidence which might make out the type of case he apparently has in mind to motivate, namely some form of conspiracy and fraud. He informed me during his application for an adjournment that he proposes to prepare the necessary pleading himself.

21. I consider an adjournment to be inutile and I refuse it.

22. Having regard to the fact that he is not here, and to the fact that his application to appear by AVL has been refused, as well as to the fact that I have refused his adjournment, the proceedings must, as sought by the defendant, be dismissed, and I will so order. I make the following orders:

1. The proceedings are dismissed.

2. The order made on 23 December 2021, extending the caveat until further order, is discharged.

3. Within seven days of today, the plaintiff is to withdraw caveat identification number 7703150J, failing which, pursuant to UCPR r 40.8(a), a Registrar of the Court is authorised to do all such things and execute all such documents to effect the withdrawal.

23. I record that the defendant undertook to the Court that 50 per cent of the net proceeds of the Land, will be paid into Court or at the plaintiff’s direction.

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Decision last updated: 26 July 2022