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Al Dakhili v Al Kheurallah

Al Dakhili v Al Kheurallah

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Case Copied 8 February 2023 82 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Al Dakhili v Al Kheurallah [2023] NSWSC 47
Hearing dates: 1 – 2 February 2023
Date of orders: 8 February 2023
Decision date: 08 February 2023
Jurisdiction: Equity
Before: Meek J
Decision:
Specific performance of deed granted - Consequential orders made

Catchwords:
DEED — Parties in dispute regarding operation of barbershop businesses in three locations — Plaintiff commences main proceedings and parties resolve differences by entering into a deed of settlement and release — Deed sets out particular provisions relating to each of the three businesses including particular provisions relating to assignment of a lease in respect of one of the businesses — Delay of one year between the date of the deed and the date plaintiff’s solicitors sent a letter to the landlord requesting their consent for an assignment of the relevant lease — Landlord specifies consent requirements which the plaintiff in turn seeks the first defendant’s cooperation in complying with — First defendant declines/fails to sign documentation — Plaintiff commences these proceedings seeking specific performance of the deed — First defendant incarcerated for part of the time of the proceedings and upon release then detained by immigration authorities — First defendant nonetheless legally represented for many directions hearings up to and including the time the matter is fixed for hearing — First defendant withdraws instructions to solicitors and is subsequently self-represented on several directions hearings and then released from detention — Some delay in first defendant seeking further legal representation — Belated application by first defendant on first day of the hearing to adjourn the hearing — Application refused and hearing proceeds
UNREPRESENTED LITIGANTS — Content of procedural fairness
INTERPRETERS — First defendant — Born in Kuwait — Assisted by Iraqi-Arabic interpreter — Arrangements for interpreters at the hearing
CIVIL PROCEDURE — Hearings — Adjournment — Applicable principles — First defendant legally represented for many directions hearings up to and including time matter is fixed for hearing — First defendant withdraws instructions to solicitors and is subsequently self-represented on several directions hearings and released from detention — Some delay in first defendant seeking further legal representation — No disclosure of defence prior to hearing — Belated application to adjourn hearing refused
PRACTICE AND PROCEDURE — Principles regarding email communications with Judge’s chambers — Approach with self-represented litigants
DEED — Delivery — Requirements regarding delivery of deed
CONSTRUCTION & INTERPRETATION — Principles of construction regarding contracts applicable to deeds — Approach to construction aided by identifying possible competing constructions
EQUITY — Equitable remedies — Specific performance — Working out of orders for specific performance — Issues in respect of only one of three businesses litigated on application for specific performance — Effect of simmering un-litigated and unresolved other issues on order for specific performance — Whether order for specific performance in respect of litigated issue precludes the Court being able to subsequently address other un-litigated issues
EQUITY — Equitable remedies — Defences to specific performance – Delay
EQUITY — Equitable remedies…

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.

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Details

Case: [2023] NSWSC 47
Decision Date: 08 February 2023

CaseChat Overview and Summary

In Al Dakhili v Al Kheurallah, the plaintiff sought specific performance of a deed of settlement and release between the parties. The deed involved three barbershop businesses, including the assignment of a lease for one of the businesses. The plaintiff sought specific performance of the deed, particularly the clause concerning the lease assignment, due to the first defendant's failure to cooperate in obtaining the landlord's consent. The first defendant, who was incarcerated and later detained by immigration authorities, had been legally represented during many directions hearings but withdrew instructions to their solicitors and became self-represented. The first defendant's belated application to adjourn the hearing was refused, and they proceeded unrepresented on the first day of the hearing.

The court had to decide whether the plaintiff was entitled to specific performance of the deed, particularly regarding the lease assignment. This involved interpreting the deed, considering the principles of equitable remedies, and addressing potential defences such as delay. The court also had to consider the procedural fairness in dealing with the unrepresented litigant and the implications of the first defendant's conduct on the application for specific performance. Additionally, the court had to determine whether an order for specific performance precluded it from subsequently addressing other unresolved issues under the deed.

The court reasoned that the deed was clear in its terms and that specific performance was an appropriate remedy given the first defendant's failure to cooperate in obtaining the landlord's consent for the lease assignment. The court noted that the first defendant's delay and lack of cooperation in complying with the deed's requirements constituted a valid defence of delay. However, the court found that the delay was not so significant as to preclude specific performance, particularly as the plaintiff had acted promptly once the first defendant had provided the necessary information. The court ordered specific performance subject to the plaintiff's undertaking not to raise any estoppel argument if the first defendant subsequently claimed under the deed. The court also made orders to ensure procedural fairness to the first defendant, including the provision of an interpreter and consideration of the first defendant's circumstances.

The final orders included specific performance of the deed regarding the lease assignment, subject to the plaintiff's undertaking. The court also ordered that the first defendant provide an interpreter and considered their circumstances in determining the procedural fairness of the proceedings. The court further ordered that any subsequent claims by the first defendant under the deed would be subject to the court's supervision and that the plaintiff was not to raise any estoppel argument in such claims.

Orders