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

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.
I should state for the record the orders sought:

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;

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

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

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.
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.
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…

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 654
Case: [2020] NSWSC 654
Decision Date: 18 May 2020

CaseChat Overview and Summary

Als131 Pty Ltd sought leave to file a notice of motion in the Federal Circuit Court, challenging a decision of the Federal Court. The dispute revolves around a writ of possession and the representation of parties by unqualified individuals. The primary legal issue was whether the applicant had demonstrated a sufficient justification to warrant leave to file the notice of motion, particularly given the applicant's history of making last-minute applications that appeared to be designed to obstruct the enforcement of the writ of possession. The court needed to determine whether the proposed orders would achieve any useful purpose and whether the applicant's conduct warranted the grant of leave.

The court found that the proposed orders sought by the applicant would not achieve any useful purpose, as they were primarily intended to delay the enforcement of the writ of possession. The court also noted the applicant's pattern of making last-minute applications to hinder the execution of the writ, which suggested a lack of genuine intent to pursue the substantive issues in the case. Furthermore, the representation of the applicant by an unqualified individual added to the court's concerns about the legitimacy of the application. Given these factors, the court concluded that there was no utility in granting the leave sought and refused the application. The court emphasised the importance of adhering to procedural rules and the need to prevent abuse of the court process by repeated last-minute applications.

Orders