Al-Hadi v Zreika

[1999] NSWSC 514

CITATION:	Al-Hadi v Zreika [1999] NSWSC 514
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	1953/99
HEARING DATE(S):	31 May 1999
JUDGMENT DATE:	31 May 1999
PARTIES :	Edmond Al-Hadi (P1) Ramona Al-Hadi (P2) Gazi Zreika (D1) Wafaa Zreika (D2)
JUDGMENT OF:	Master McLaughlin

COUNSEL :	Mr. J. Patel (P)
SOLICITORS:	Neil Kerz (P) In Person (D)
CATCHWORDS:
DECISION:

SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Monday, 31 May 1999

1953/99 EDMOND AL-HADI & ANOR -v- GAZI ZREIKA & ANOR

JUDGMENT

1    MASTER: These proceedings were instituted by summons filed on 9 April 1999 by the plaintiffs, Edmond Al-Hadi and Ramona Al-Hadi. The defendants named to that summons are Gazi Zreika and Wafaa Zreika. The summons seeks declarations and injunctive relief concerning the drainage of sewerage from the land of the defendants through the land of the plaintiffs and also seeks damages and costs. 2    An appearance was filed on behalf of the defendants by Bruce Brian Cameron of Cameron Gillingham & Boyd on 19 April 1999. The matter came before Bergin J as Duty Judge in the Equity Division on 27 April 1999. On that date orders were made by consent, those orders being declarations in the terms of paragraphs 1 and 2 in the summons and an order in the terms of paragraph 3 in the summons. On that occasion the first defendant appeared in person. I gather that the defendants had by then dispensed with the services of their solicitors, although no notice of ceasing to act has yet been filed. 3    The orders by consent also included orders in the form of a timetable set forth in short minutes dated 27 April 1999. That timetable included provision for the filing of affidavits by the defendants by 17 May 1999. No affidavits of the defendants were filed by that date or indeed at any time. 4    The orders of Bergin J included an order that the matter be listed before the Registrar this day, 31 May 1999. The matter has been referred by the Registrar to me upon the application of the plaintiffs. The purpose of that referral was the application of the plaintiffs for damages and for costs. The amount of damages sought by the plaintiffs is in a total amount of $2,870. In support of that amount the plaintiffs relied upon the affidavit of Buddy John Chaloub sworn on 21 May 1999. 5    The first defendant appeared in person; his daughter acted as his interpreter. At the outset the defendants were desirous that the matter be further adjourned, an application which was opposed by the plaintiffs on account of the small amount being claimed by them in respect to damages. I stood the matter down in the list, and ultimately the parties reached agreement concerning the claim of the plaintiffs for damages. 6    A document entitled Terms of Settlement has been signed by Counsel for the plaintiffs and by the first defendant on behalf of the defendants. It also bears a notation that the daughter of the first defendant, Mrs Boushra Kabbout, has acted as interpreter for her father. That document is in the following terms:

By consent the court orders:

(1) That the plaintiffs have judgment against the defendants in the sum of $2,870.

7    I have enquired of Mr Zreika through his daughter whether he understands the effect of that document and I am satisfied that he does. 8    The plaintiffs now seek an order that the defendants pay the costs of the plaintiffs of the proceedings. That application for costs is opposed by the defendants. 9    The defendants point to the fact which they assert, although I would emphasise that there is no evidence in this regard since the defendants have not filed any affidavits, that the defendants have resided in their premises for the past twenty years and that the problem concerning drainage arose before that time. 10    The various communications which have given rise to the institution of the present proceedings by summons filed on 9 April 1999 are set forth in the affidavit of Neil Graham Kerz, the solicitor for the plaintiffs, sworn 9 April 1999 and in the various annexures to that affidavit. 11    It is unfortunate that the defendants have not been represented by solicitor or counsel at today's hearing or that they did not, before the proceedings were instituted, have the benefit of legal advice. However, I must decide the matter upon the evidence which is properly placed before me. The Court is, in general, enjoined to follow the principle that the costs follow the outcome of the proceedings. The plaintiffs have been totally successful in the proceedings brought by them. At each stage, firstly at the hearing before Bergin J, and secondly at the hearing before me the defendants have ultimately consented to the relief sought by the plaintiffs. 12    In those circumstances I am not persuaded that there is any reason why I should depart from the principle that the defendants should pay the costs of the successful plaintiffs. Accordingly, I propose so to order. 13    I make the following orders:

(1) I make an order as in the document entitled Terms of Settlement signed by Counsel for the plaintiffs and the first defendant, initialled by me and filed in Court this day.
(2) I order that the defendants pay the costs of the plaintiffs.

**********

Last Modified: