Al Haje v Elassaad (No 3)
[2024] NSWSC 1191
•20 September 2024
Supreme Court
New South Wales
Medium Neutral Citation: Al Haje v Elassaad (No 3) [2024] NSWSC 1191 Hearing dates: 19 September 2024 Date of orders: 20 September 2024 Decision date: 20 September 2024 Jurisdiction: Common Law Before: Elkaim AJ Decision: 1. The judgment and orders made on 6 June 2024 and 28 June 2024 respectively are stayed on condition that the plaintiff is paid $225,000.
2. The $225,000 referred to in the previous order is to be paid from the joint account held in the names of the plaintiff’s solicitor and the defendant’s solicitor.
3. A further sum of $98,069.16 is to be paid from the same joint account to the plaintiff representing the amount of the costs certificate arising from the orders of Fagan J made on 31 January 2024.
4. A further sum of $93,000 is to be paid from the same joint account to the defendant’s solicitors on the undertaking of the solicitors that the monies will not be expended other than in respect of the appeal and/or already incurred legal fees.
5. In the event that the defendant’s solicitors decline to give the undertaking stated in the previous order, no amount of money is to be paid to the defendant or his solicitors from the joint account.
6. Each party is to pay its own costs of their respective notices of motion.
Catchwords: CIVIL PROCEDURE — stay of proceedings — pending appeal — where defendants seek a stay of proceedings and plaintiff seek payment of half of the verdict sum — court to do justice between the parties — stay of proceedings granted with conditions — payment of previously ordered costs — funds to enable payment of defendant’s legal fees, past and future
Cases Cited: Al Haje v Elassaad [2024] NSWSC 689
Al Haje v Elassaad (No 2) [2024] NSWSC 794
Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Category: Procedural rulings Parties: Wisam Al Haje (Plaintiff)
Mohammad Elassaad (Defendant)Representation: Counsel:
Mr J Sheller SC (Plaintiff)
Mr M Algie (Plaintiff)
Mr R Perla (defendant)
Solicitors:
Greg Walsh & Co (Plaintiff)
Elias Gates (Defendant)
File Number(s): 2021/219805 Publication restriction: No
JUDGMENT
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There are two notices of motion before the court. The first in time was filed by the defendant on 19 August 2024. It is supported by an affidavit of Mr George Elias (the defendant’s solicitor) affirmed on 30 August 2024.
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The second notice of motion was filed by the plaintiff on 10 September 2024. It is supported by an affidavit of Mr Gregory Walsh (the plaintiff’s solicitor) sworn on 9 September 2024.
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On 6 June 2024 I gave a judgment in favour of the plaintiff in the sum of $454,340.95 (Al Haje v Elassaad [2024] NSWSC 689). On 28 June 2024 I made costs orders in relation to the proceedings (Al Haje v Elassaad (No 2) [2024] NSWSC 794).
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The defendant’s notice of motion seeks a stay of the above judgment and costs orders, and also payment to him of a sum of money (almost $200,000) out of funds being held in a joint account in the names of the parties’ respective solicitors.
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The plaintiff opposes the orders sought by the defendant.
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The plaintiff’s notice of motion seeks the payment of $200,000 into the account of his solicitor, whereupon he will provide a discharge of a mortgage he holds over a property in Greenacre in which the defendant has an interest.
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The defendant opposes the orders sought by the plaintiff.
Background
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On 24 January 2021 the defendant assaulted the plaintiff at the plaintiff’s home in Greenacre. The plaintiff was injured. This incident led to proceedings, originally filed in the District Court but later transferred to this court, in which the plaintiff sought damages for the injuries he suffered.
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My decision on 6 June 2024 concerned whether or not the defendant was liable to the plaintiff for the assault, and if so, the quantum of damages to be awarded.
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The defendant has filed a Notice of Appeal in which he challenges the quantum of damages that I awarded. He has not challenged liability.
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There have been a number of decisions of other judges of this Court which have influenced the background to the motions before me. Most notable, for present purposes, are the orders of Fagan J on 31 January 2024 concerning the costs of various related hearings. His Honour made orders for various costs incurred by the defendant to be paid forthwith. Those costs were assessed and a costs certificate in the sum $98,069.16 was registered by Mr Walsh. These costs have not been paid.
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Two other factors are important, also arising from previous court orders:
there is a joint account held in the names of the parties’ respective solicitors which currently has a balance of just over $490,926. The account was established on the orders of Harrison CJ at CL made on 29 July 2024; and
the plaintiff has a mortgage of $200,000 over the Greenacre property which, subject to separate mortgages, is jointly owned by the defendant and his father. There was some dispute as to whether there is any realisable equity in the property.
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The plaintiff submitted that the orders of Harrison CJ at CL had not been properly complied with because the amount paid into the joint account, which was supposed to be the net proceeds of the sale of a property owned by the defendant, had not included the deposit that had been paid by the purchaser. I found the defendant’s submission that the deposit was not included because it had been paid before the sum paid on settlement, somewhat unconvincing.
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In relation to a stay, the following was said in Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685, at 694:
“In our opinion it is not necessary for the grant of a stay that special or exceptional circumstances should be made out. It is sufficient that the applicant … demonstrates a reason or appropriate case to warrant the exercise of discretion in his favour …The Court has a discretion whether or not to grant the stay and, if so, as to the terms that would be fair. In the exercise of its discretion the Court will weigh considerations such as the balance of convenience and the competing rights of the parties before it: Attorney-General v Emerson (1889) 24 QBD 56 … Two further principles can be mentioned. The first is that where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay … Thus, where it is apparent that unless a stay is granted an appeal will be rendered nugatory this will be a substantial factor in favour of the grant of a stay”.
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The plaintiff pointed out that the Notice of Appeal was in the most vague of terms. There were no concise grounds and no suggested alternatives. I also note that the submissions made by the defendant at the hearing on damages would have resulted in a verdict of about $100,000.
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As the hearing before me progressed, the defendant’s request for monies to be paid to him diminished in size, ultimately ending at approximately $93,000, in order to fund the appeal and pay, partially, past legal fees.
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Both parties asserted that the opposing party would be unlikely to be able to repay any monies that were advanced to that party. There is some merit in the submission of both sides, but it ignores the fact that, at least at this stage, the plaintiff is in the far superior position, being entitled to the fruits of the verdict in his favour. In addition, the defendant’s history in not complying with previous court orders does not assist his cause.
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Although the plaintiff opposed any stay, he did ultimately submit that if I were to grant a stay it should be on the basis of payment of half the verdict sum, which should be withdrawn from the joint bank account.
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The starting positions of the respective parties were diametrically opposed. I initially tried, through discussion, to engineer a compromise position, but this was to no avail.
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Ultimately, I need to do justice between the parties. I think the only way to do this is to effectively merge the two motions and to make orders which will be fair to both parties, which will not stultify an appeal, and which will provide the plaintiff with some of the fruits of his success. It is also necessary that the plaintiff receive costs arising from the orders of Fagan J.
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Therefore, I intend to grant a stay and to provide the defendant with the means to run the appeal. To guard against the defendant utilising these funds for his own benefit (for example by withdrawing the appeal), I will attach an appropriate condition to the payment of any monies to him. The monies will be paid to his solicitors, but only on their undertaking to use the funds for the appeal or in satisfaction of legal fees already owed to them.
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I do not think the stay can be unfettered. I agree that payment of 50% (rounded off) of the verdict sum is an appropriate condition, however that sum should also come from the joint account. It seems clear that the defendant would otherwise have no prospect of raising the sum to meet the condition.
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Further, in order to maintain the plaintiff’s interest in the property over which he has a mortgage, I will not make any order that the mortgage be discharged. I appreciate that there is some evidence that there is no equity in the property but note that the defendant provided a schedule (MFI 1) which says there is approximately $340,000 available after payment of all the other encumbrances.
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As far as costs are concerned, each side has had a degree of success so that I will make no order as to costs on the motions.
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I make the following orders:
The judgment and orders made on 6 June 2024 and 28 June 2024 respectively are stayed on condition that the plaintiff is paid $225,000.
The $225,000 referred to in the previous order is to be paid from the joint account held in the names of the plaintiff’s solicitor and the defendant’s solicitor.
A further sum of $98,069.16 is to be paid from the same joint account to the plaintiff representing the amount of the costs certificate arising from the orders of Fagan J made on 31 January 2024.
A further sum of $93,000 is to be paid from the same joint account to the defendant’s solicitors on the undertaking of the solicitors that the monies will not be expended other than in respect of the appeal and/or already incurred legal fees.
In the event that the defendant’s solicitors decline to give the undertaking stated in the previous order, no amount of money is to be paid to the defendant or his solicitors from the joint account.
Each party is to pay its own costs of their respective notices of motion.
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Decision last updated: 20 September 2024
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