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

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.
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.
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).
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…

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.

Continue reading Als131 Pty Ltd v Rahme

Details

AGLC: ALS131 Pty Ltd v Rahme [2020] NSWSC 615
Case: [2020] NSWSC 615
Decision Date: 19 May 2020

CaseChat Overview and Summary

In the Federal Court of Australia, Als131 Pty Ltd, a mortgagee, filed an application against the defendant, Rahme, to seek a review of the Registrar's decision that had previously dismissed the mortgagee's application for a writ of possession. The dispute centred around the mortgagee's claim for possession of a property, where the defendant had defaulted on the mortgage payments. The defendant opposed the application, arguing that the mortgagee had failed to adhere to the proper procedural steps and had acted unreasonably.

The primary legal issues before the court were whether the applicant should be granted leave to file a notice of motion seeking a review of the Registrar's decision and whether the applicant should be permitted to adduce fresh evidence in support of their application. The court considered whether there was any utility in granting the leave, given the repeated opportunities the applicant had to present their case and whether there was a valid defence to the application.

The court found that there was no utility in granting leave for the applicant to file a notice of motion seeking a review of the Registrar's decision. The court held that the applicant had been given ample opportunity to present their case and that there was no valid defence to the application. The court also found that the applicant had not demonstrated any exceptional circumstances that would warrant the admission of fresh evidence. Accordingly, the court refused the application and dismissed the appeal.

The court ordered that the applicant pay the defendant's costs of the application, to be taxed on the higher scale if not agreed upon.

Orders