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)

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.
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.
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.
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…

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 Al Ajoor v Ambour

Details

AGLC: Al Ajoor v Ambour [2022] NSWSC 604
Case: [2022] NSWSC 604
Decision Date: 03 May 2022

CaseChat Overview and Summary

The matter involved Al Ajoor, the plaintiff, and Ambour, the defendant, who were engaged in a dispute that came before the court. The plaintiff sought to have the proceedings dismissed on the grounds that they had not been pursued with due despatch. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the plaintiff's failure to diligently pursue the proceedings warranted their dismissal. This involved an assessment of the plaintiff's conduct and the reasons for the delay in the proceedings. The court had to consider whether the delay was unreasonable and whether it had caused prejudice to the defendant.

In its judgment, the court found that the plaintiff had not acted with due despatch and had unreasonably delayed the proceedings. The delay was attributed to the plaintiff's own conduct, specifically their failure to diligently pursue the case. The court held that the plaintiff's conduct amounted to an abuse of the court process, which warranted the dismissal of their statement of claim. Additionally, the court ordered that the plaintiff pay the defendant's costs associated with the application.

The court's final orders were that the plaintiff's statement of claim was dismissed and that the plaintiff was to pay the defendant's costs. This outcome underscores the importance of due despatch in legal proceedings and the consequences of failing to adhere to it.

Orders