Al Haje v Elassaad (No 3) - [2024] NSWSC 1191

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

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.
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.
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).
The defendant’s notice of motion seeks a stay of the above judgment and costs orders, and also payment to him…

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: [2024] NSWSC 1191
Decision Date: 20 September 2024

CaseChat Overview and Summary

In the case of Al Haje v Elassaad (No 3), the defendants applied for a stay of proceedings in the Supreme Court of New South Wales, given that an appeal was pending. The plaintiff, in response, sought payment of half of the sum already awarded in their favour. The court had to determine whether to grant the defendants’ application for a stay and, if so, under what conditions. Additionally, the court needed to decide on the plaintiff’s request for payment of half of the awarded sum.

The court acknowledged that it must balance the interests of both parties in determining whether to grant a stay of proceedings. The court recognised that while a stay would halt the plaintiff’s ability to enforce the judgment, it would also allow the defendants to challenge the decision without incurring additional legal costs. The court concluded that it was in the interests of justice to grant the stay but with conditions. These included the payment of previously ordered costs and the release of funds to cover the defendants' legal fees, both past and future.

The Supreme Court of New South Wales granted the stay of proceedings with specific conditions attached. These conditions included the payment of previously ordered costs by the plaintiff to the defendants and the release of funds to cover the defendants' legal fees. This ruling aimed to balance the defendants’ right to appeal without incurring further financial burdens while ensuring the plaintiff’s interests were also protected.

No additional orders were made by the court beyond those already mentioned. The court’s decision effectively provided a pathway for the defendants to appeal the judgment while mitigating the financial impact on them during the pendency of the appeal.

Orders