Als131 Pty Ltd v Rahme

[2020] NSWSC 615

Supreme Court

New South Wales

Medium Neutral Citation:	ALS131 Pty Ltd v Rahme [2020] NSWSC 615
Hearing dates:	19 May 2020
Date of orders:	19 May 2020
Decision date:	19 May 2020
Jurisdiction:	Common Law
Before:	Lonergan J
Decision:	(1) I refuse leave to the defendant to file her Notice of Motion dated 18 May 2020.  (2) No orders as to costs.
Catchwords:	CIVIL PROCEDURE — Registrars — review of Registrar’s decision — application for leave to file notice of motion seeking review of Registrar’s decision — orders sought permitting “fresh evidence” — leave refused — no utility in granting leave — repeated opportunity to present case — no valid defence   MORTGAGES AND SECURITIES — mortgages — duties, rights and remedies of mortgagee — possession — writ of possession
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	ALS131 Pty Limited v Rahme [2020] NSWSC 210 ALS131 Pty Ltd v Rahme [2020] NSWSC 161 ALS131 Pty Ltd v Rahme [2020] NSWSC 429
Category:	Procedural and other rulings
Parties:	ALS131 Pty Ltd (Plaintiff) Tanya Kristin Rahme (Defendant)
Representation:	Counsel: A Smith (Plaintiff) Applicant (self-represented) Solicitors: Summer Lawyers (Plaintiff)
File Number(s):	2019/209267
Publication restriction:	Nil

EX TEMPORE Judgment

1. Yesterday, as duty judge, I dealt with an application for leave by the defendant to file a notice of motion seeking certain relief in respect of a writ of possession which was due to be enforced this morning.

2. For the reasons I set out in the judgment that I gave yesterday evening at about 5:00pm, that leave was not granted against a background of repeated applications to duty judges in this Court made, on almost every occasion at the very last minute, as was the application made yesterday. Consistent with that pattern, and for reasons that were not sufficiently explained, the defendant only alerted the Court to the application she wished to make yesterday at 3:10pm yesterday.

3. The application I have been asked to consider today is a different notice of motion, although also dated 18 May 2020. The application was forwarded to my tipstaff by email at 6:29pm yesterday. The application was not accompanied by any affidavit material and is in the form of a notice of motion headed "Uniform Civil Procedure Rules and Review of Registrar Jones' Decision". The notice of motion seeks various orders which seem to be in the nature of seeking leave to review the decision of Registrar Jones handed down on 9 December 2019, which was in effect a refusal to set aside a default judgment obtained by the plaintiff in September last year. The leave sought is expressed to be pursuant to r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW).

4. Orders are also sought permitting the defendant to present what she terms “fresh evidence” to the Court in relation to the original judgment and leave to rely on an amended defence and leave to file cross-claims against various corporate identities, one of which is the first plaintiff, as well as other corporate identities, a director of a finance company and another company called LTDC Pty Limited. The basis for any of this remains unexplained by any affidavit material or anything that has been raised orally by the defendant today.

5. The ninth order sought in the notice of motion is an order that the execution of the writ of possession be stayed until the motion can be determined.

6. In respect of that last order, I have been informed by Mr Smith of counsel, who again appears for the plaintiff, that the writ of possession was executed this morning and the locks changed and, therefore, I agree with his submission that proposed prayer 9 is otiose. There is obviously now no purpose in granting any such order.

7. Yesterday I articulated the background to the defendant's dispute with the plaintiff, which included multiple attempts this year before different duty judges at the last minute to have the writ of possession stayed. This activity was successful on a number of occasions in postponing the execution of the writ of possession in February 2020[1] , March 2020[2] and in April 2020[3] .

   1. ALS131 Pty Ltd v Rahme [2020] NSWSC 161.

   2. ALS131 Pty Limited v Rahme [2020] NSWSC 210.

   3. ALS131 Pty Ltd v Rahme (No 2) [2020] NSWSC 429.

8. In April 2020, ALS131 Pty Ltd v Rahme (No 2) [2020] NSWSC 429, Cavanagh J, based on affidavit material then before him, provided to the defendant (and others claimed to be living with her), a period of one month to enable departure from the premises in an orderly way.

9. It cannot be said that the defendant has not had multiple opportunities and a long period of grace to depart the premises.

10. On 12 and 14 May 2020, ALS131 Pty Ltd v Rahme [2020] NSWSC 569, Fullerton J dealt with the remainder of the defendant's notice of motion filed on 26 February 2020. Her Honour dealt with that motion in a comprehensive way, including allowing a two-day adjournment to permit the defendant to file her evidence and submissions, despite her failure to comply with orders that that material be provided by 12 May 2020.

11. Her Honour made orders finally disposing of the proceedings, as I noted in my judgment yesterday. Her Honour also ordered that any further application for orders of the kind reflected in that notice of motion, should only be permitted by leave, and the question of leave is to be dealt with by the duty judge.

12. Mr Smith submitted, in addition to his confirmation that the writ for possession had already been executed, that arrangements had been made for an ex-gratia payment of $1,500 to assist the defendant with hotel accommodation. He was instructed to oppose the application for leave to file this further notice of motion on the grounds that it was seeking to agitate issues that had already been dealt with by this Court and had already been dismissed.

13. Ms Rahme for her part repeated submissions of a general nature that she seems to have made on a number of earlier occasions, to the effect that she feels that she has “not had an opportunity for her matter to be considered by the Court”. She claims to have had a further conversation with Legal Aid today and that certain representations were made to her. I should note that yesterday I was informed that a formal application for Legal Aid had been made last Friday, although against a background of Legal Aid having been previously refused to the defendant, because the loan was taken out in a company name and therefore was considered to be a commercial matter.

14. In my view, the defendant has had ample, repeated opportunities to present her case if she has one. She has not demonstrated to me that she has any valid defence. The defendant has had the benefit of multiple judges of this Court, prepared to consider with care material provided by the defendant on those various occasions I have referred to.

15. There is nothing in the notice of motion or the circumstances in which the matter comes before me today that suggests that there is any utility whatsoever in granting leave to the defendant to file the notice of motion that she seeks to file. In those circumstances, I refuse leave to the defendant to file the notice of motion dated 18 May 2020. The plaintiff does not seek costs and so there is no order as to costs.

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Endnotes

Decision last updated: 22 May 2020