Als131 Pty Ltd v Rahme

[2020] NSWSC 654

Supreme Court

New South Wales

Medium Neutral Citation:	ALS131 Pty Ltd v Rahme [2020] NSWSC 654
Hearing dates:	18 May 2020
Date of orders:	18 May 2020
Decision date:	18 May 2020
Jurisdiction:	Common Law
Before:	Lonergan J
Decision:	(1) The application by the defendant seeking leave to file in court her Notice of Motion dated 18 May 2020 is refused. (2) No order as to costs.
Catchwords:	CIVIL PROCEDURE — hearings — applicant seeks leave to file notice of motion — question of leave — no utility in orders sought — leave refused — multiple prior last minute applications in order to derail execution of writ of possession CIVIL PROCEDURE — parties — representation — by unqualified persons
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 569 ALS131 Pty Ltd v Rahme (No 2) [2020] NSWSC 429
Category:	Procedural and other rulings
Parties:	ALS131 Pty Ltd (Plaintiff) Defendant (self-represented)
Representation:	Counsel: A Smith (Plaintiff)   Solicitors: Summer Lawyers (Plaintiff)
File Number(s):	2019/209267
Publication restriction:	Nil

EX TEMPORE Judgment

1. This application came before me at about 5:00pm today as Duty Judge. At 3:10pm today contact was made by the defendant, Ms Rahme, with the Duty Registrar. That contact consisted of providing a notice of motion dated 18 May 2020 together with an affidavit of Ms Rahme of the same date. Counsel and the solicitors who acted for the plaintiff in previous applications by Ms Rahme before this Court were copied in to the email.

2. I should state for the record the orders sought:

1. That in accordance with Fullerton J’s decision of 14 May 2020 annexed hereto, the defendant seeks leave to address the balance of the notice of motion filed on 26 February 2020;

2. That in light of the writ of possession which is due to be enforced on 19 May that the balance of the notice of motion of 26 February be heard urgently before either Fullerton J or the duty judge as the Court sees fit; and

3. No orders as to costs be made in relation to this notice of motion.

3. As is no doubt obvious, contacting the Duty Registrar at 3:10pm on the day before a writ for possession is to be actioned early the following morning creates difficulties for all concerned. When I asked Ms Rahme why she left it so late today to file the application, a question I deliberately left open, Ms Rahme said that she “did not do it on purpose” and that she “does not wait till the last minute” for applications of this kind.

4. I considered that statement not to be a true reflection of the lateness of all the other applications made by Ms Rahme that have been dealt with by this Court this year.

5. What the court record reflects is that on 26 February 2020, Beech-Jones J dealt with a motion filed in Court for an order to set aside the December 2019 judgment of Registrar Jones and to stay the writ of possession due to be enforced at 9am that morning. [1] His Honour cited the history of the proceedings and dealt with the urgent part of that application and determined that prayer 2 of the notice of motion, which sought the interim stay of the writ of possession due to be enforced at 9:00am on that morning, to be dismissed. The balance of the motion was stood over for further management before the Registrar. His Honour noted that any further application for a stay of the writ of possession should be referred to the Duty Judge.

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

6. The matter was next dealt with by Johnson J on Friday 6 March 2020. [2] Again it was a case of the defendant seeking a stay of execution of the writ of possession, filing the notice of motion in Court on an urgent basis with the writ of possession due to be executed by the sheriff the following Monday morning, 9 March 2020. On that day the plaintiff was represented by Ms Keynes and the stay was opposed. Johnson J observed the matters already referred to by Beech-Jones J and, having considered the material before him and the arguments advanced, was not persuaded that there was any basis or any foundation to stay the execution of the writ of possession, and he declined to stay the execution of the writ accordingly.

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

7. On 16 April 2020, Cavanagh J was approached as Duty Judge at 8:30am by the defendant seeking a stay of the writ of possession which was due to be enforced at 9:00am that day. On that occasion Mr Smith of counsel appeared for the plaintiff. His Honour reviewed the affidavit material tendered by the defendant and observed that the application was brought at the last minute and without compliance with the Practice Note. He noted that it was the defendant’s third application for a stay. Having examined the evidence, his Honour formed the view that he could extend one last chance to the defendant for orderly vacation of the premises and ordered the writ of possession be stayed until 16 May 2020. [3]

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

8. There was again a last minute application, this time to Fullerton J on 12 May 2020. Fullerton J observed that an email had been forwarded to the Court, copied to the plaintiff, on 30 April 2020 seeking an adjournment of proceedings listed for 12 May 2020 on the basis that the defendant had been unable to comply with the Registrar’s orders requiring filing and service of any evidence in support of orders sought by the defendant.

9. The plaintiff did not consent to adjournment of the hearing. A formal application was required. The Court convened at 11:15am on 12 May 2020. Ms Keynes of counsel appeared for the plaintiff but there was no appearance for the defendant. Fullerton J extended further courtesies and compassion to the defendant by allowing a further opportunity to the defendant to have more time to comply with the Court's orders. This was in response to an email sent by the defendant at 1:22pm on 13 May 2020, asking for further time, given some medical issues she was having. The plaintiff did not oppose that extension.

10. On 14 May 2020 the proceedings were called before Fullerton J and her Honour, having heard argument, made final orders dismissing the defendant's notice of motion filed on 26 February 2020 and ordering that any further application for orders of the kind reflected in the balance of the defendant's notice of motion filed on 26 February 2020 and/or in any unfiled notice of motion is only to be filed by leave, and that the question of leave is to be dealt with by the Duty Judge. [4]

    4. ALS131 Pty Ltd v Rahme [2020] NSWSC 569

11. It is in that context that the application was made to the Duty Registrar and brought to my attention at about 4:40pm. The orders sought in the notice of motion dated 18 May 2020 do not appear to be orders that there would be any utility in making. They proceed on a misunderstanding of Fullerton J's decision and her Honour’s orders of 14 May 2020. No stay of the writ of possession is sought that is to be executed tomorrow morning.

12. In those circumstances there is no purpose or utility to be served by my granting leave to the defendant to file the notice of motion at this late stage. The affidavit filed in support does not assist.

13. I should note the reasons articulated by the defendant as to why she has sought this leave so late, and reasons she offers as to why the Court should continue to entertain applications of this kind from her.

14. The submissions offered orally by Ms Rahme were somewhat contrary. Initially it was submitted that the decision of Registrar Jones in December 2019 fundamentally missed out on a number of necessary matters and considerations. But then, later in her argument, Ms Rahme stated that she was “not for a moment saying that Registrar Jones erred” but rather that Registrar Jones made her decision based on the information that was available at that time. Ms Rahme also raised that she personally was not a lawyer and found it difficult to concentrate and to prepare her paperwork and that this accounted for why she made the application so late.

15. Understandably the plaintiff's representatives oppose leave. Ms Keynes submitted that there was no proper basis for the Court to apprehend that there was any new matter or reason identified by the defendant to be raised and agitated before the Court. I agree.

16. I am of the view that I should refuse leave to the defendant to file her notice of motion dated 18 May 2020.

17. As I have already stated, orders 1 and 2 proceed on the misunderstanding that the notice of motion filed by the defendant on 26 February 2020 is still on foot. This is wrong. That notice of motion was dismissed by Fullerton J on 14 May 2020. There is no basis to grant leave for the filing of this notice of motion in those circumstances.

18. Counsel for the plaintiff does not seek costs of this afternoon's attendance. Accordingly, I make no order as to costs.

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Endnotes

Decision last updated: 29 May 2020