Al Ajoor v Ambour

[2022] NSWSC 604

Supreme Court

New South Wales

Medium Neutral Citation:

Al Ajoor v Ambour [2022] NSWSC 604

Hearing dates:

3 May 2022

Date of orders:

3 May 2022

Decision date:

03 May 2022

Jurisdiction:

Common Law

Before:

Dhanji J

Decision:

(1)   The plaintiff’s statement of claim filed on 24 November 2021 is dismissed.

(2)   The plaintiff pay the defendant’s costs.

Catchwords:

CIVIL PROCEDURE – show cause hearing – application to have proceedings dismissed for want of due despatch – plaintiff’s statement of claim dismissed – costs

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 61

Uniform Civil Procedure Rules 2005 (NSW), r 12.7

Cases Cited:

Templar v Watt (2014) NSWSC 937

Category:

Procedural rulings

Parties:

Sameh Naif Ahmed Al Ajoor (Plaintiff)
Joseph Ambour (Defendant)

Representation:

Solicitors:
Forsters Solicitors (Defendant)

File Number(s):

2021/340250

Publication restriction:

NIl

Ex tempore Judgment (REVISED)

1. HIS HONOUR: This matter was referred by the Registrar to me sitting as Duty Judge for a show cause hearing, that is for hearing as to why the proceedings should not be dismissed on the basis of the plaintiff’s failure to prosecute the proceedings.

2. It is appropriate that I give some short history to the matter. The proceedings were commenced by statement of claim filed in this Court on 24 November 2021. The statement of claim indicated that the plaintiff was represented by a solicitor, a Mr Cristian Fuenzalida of Rockliffs Lawyers Pty Limited. In the affidavit verifying the statement of claim, the plaintiff swore that he was, firstly, the plaintiff; and secondly, that he believed the allegations of fact in the statement of claim are true. In that affidavit he gave his address as Unit 1, XXA XXXXX X Street, Waterloo.

3. The matter first came before the Court in the Registrar’s list on 8 February of this year. On that occasion there was no appearance of either party and the matter was stood over for a further directions hearing on 22 February. When the matter was next before the Court, Mr Fuenzalida appeared for the plaintiff and there was no appearance for the defendant. The record indicates that the defendant had not been served. The matter was stood over to 22 March this year.

4. On 22 March, Mr Fuenzalida filed a notice of intention to file a notice of ceasing to act. In that notice the plaintiff was advised that after seven days Mr Fuenzalida “will file in the Registry of the Court and serve a notice that he had ceased to act as the plaintiff’s solicitor”. The notice of intention further advises that the plaintiff was required to file in the Registry of the Court and serve on the defendant a notice stating the name and address of any solicitor acting for the plaintiff or, if the plaintiff does not have a solicitor, a notice stating the plaintiff’s address for service of documents. Thirdly, the notice informed the plaintiff that:

“Until that notice is filed and served, any document to be served on you in the proceedings will be taken to have been served on you if a copy of it is left at or posted to Unit 1, XXA XXXXX X Street, Waterloo NSW 2017 in accordance with UCPR 4.5.”

5. Subsequent to filing the notice of intention of ceasing to act, on 25 March a notice of removal of solicitor was filed.

6. On 22 March, when the matter was back before the Registrar, there was no appearance of either party. The matter was stood over to 19 April. On 19 April Mr Forster appeared for the defendant. There was no appearance for the plaintiff and, as I have indicated, the matter was adjourned to today for a show cause hearing, with an order that the defendant “notify Plaintiff of these orders”.

7. I have received today an affidavit of service of Michael Guest of 2 May 2022. In that affidavit he states that he attended Unit 1, XXA XXXXX X Street, Waterloo on 22 April 2022 but on ringing the security intercom determined or found that there was no response. He states that he spoke to a male occupant in the adjoining unit who “confirmed that the Plaintiff resided at the address”.

8. Mr Guest, who I should note is a licensed process server, attended the next day and again failed to receive any response to the security intercom. He re-attended on 28 April and again received no response on the security intercom. On 29 April, Mr Guest again attended the address and, again, had no response to the security intercom. He states that he then placed the letter provided to him by the defendant’s solicitor in an envelope addressed to the plaintiff, and placed that envelope in the letterbox for the relevant unit. A copy of the letter is attached to the affidavit and the letter dated 20 April 2022, in short terms, advised the plaintiff that the matter was listed before this Court for a show cause hearing on 3 May 2022. There has been no appearance by the plaintiff today.

9. That history is sufficient to show that there has, over the course of the proceedings, been very little done by the plaintiff to prosecute his claim. I should add that I have further been informed by Mr Forster that communication has been sent to the plaintiff seeking further particulars, but no response has been received and, indeed, there has been no formal communication from the plaintiff to the defendant in the course of these proceedings.

10. The net result of that is, apart from instituting the proceedings and instructing, for a short time, Mr Fuenzalida, the plaintiff has done nothing to further his claim. There is nothing before the Court to suggest that the plaintiff has changed his address from that where he resided at the time he swore the affidavit verifying the statement of claim but, I pause to note, that even if he has changed his address, he clearly has done nothing to advise the Court or anyone else relevant to these proceedings of that fact. All the evidence suggests a lack of interest on the part of the plaintiff in prosecuting his claim.

11. The Court has power under s 61 of the Civil Procedure Act2005 (NSW), and alternatively power under r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) to dismiss proceedings if a plaintiff does not prosecute them with due dispatch. The principles engaged are set out by McCallum J in Templar v Watt (2014) NSWSC 937 at [24]-[26]. It is unnecessary to repeat them.

12. It is sufficient to note that in the present case there has been precious little done by the plaintiff, after filing his claim, to suggest that he has any interest in pursuing it. In those circumstances it is, in my view, appropriate that the proceedings be dismissed.

13. I make the following orders:

1. The plaintiff’s statement of claim filed on 24 November 2021 is dismissed.

2. The plaintiff pay the defendant’s costs.

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