Als131 Pty Ltd v Rahme - [2020] NSWSC 569

Supreme Court

New South Wales

Medium Neutral Citation: ALS131 Pty Ltd v Rahme [2020] NSWSC 569
Hearing dates: 12 & 14 May 2020
Date of orders: 14 May 2020
Decision date: 14 May 2020
Jurisdiction: Common Law
Before: Fullerton J
Decision:
1. The balance of the defendant’s notice of motion filed on 26 February 2020 is dismissed.
2. The Court notes:
(a) A further document titled Notice of Motion in these proceedings was forwarded by email to the Court and served on the plaintiff’s solicitors on 22 April 2020; and
(b) That document was not filed, despite orders made by the Court on 12 May 2020, and is not compliant with the Rules.
3. 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 the unfiled notice of motion is only to be filed by leave. The question of leave is to be dealt with by the Duty Judge.
4. No order as to costs.

Catchwords:
No point of principle

Cases Cited:
ALS 131 Pty Ltd v Rahme [2020] NSWSC 161
ALS 131 Pty Ltd v Rahme [2020] NSWSC 210
ALS 131 Pty Ltd v Rahme [2020] NSWSC 429

Category: Procedural and other rulings
Parties: ALS131 Pty Ltd (Plaintiff)
Tanya Kristin Rahme (Defendant)
Representation:
Counsel:
E Keynes (Plaintiff)
Solicitors:
Summer Lawyers (Plaintiff)
In person (Defendant)

File Number(s): 2019/209267

Judgment

HER HONOUR: In proceedings brought by a statement of claim filed on 5 July 2019 the plaintiff sought an order for possession of residential premises in Wahroonga (the subject property) alleging mortgage default.
Default judgment was entered on 5 September 2019 in favour of the plaintiff for possession of the subject property. A writ of possession issued and was entered that day.
Successive applications in February and March 2020 to stay the execution of the writ of possession were unsuccessful (ALS 131 Pty Ltd v Rahme [2020] NSWSC 161 per Beech-Jones J; ALS 131 Pty Ltd v Rahme [2020] NSWSC 210 per Johnson J). For various reasons that do not require elaboration, the writ of possession has not since been executed. It is due to be executed on 16 May 2020, having been extended to that date by Cavanagh J on very strict terms (ALS 131 Pty Ltd v Rahme [2020] NSWSC 429).
On 23 April 2020 the parties appeared before the Registrar at which time orders were made for the filing and serving of any notice of motion upon which the defendant wished to move, together with the filing and serving of evidence and submissions, and the preparation of a joint Court Book. The Registrar listed the matter for hearing on 12 May 2020.
As at 23 April 2020 the only filed notice of motion was dated 26 February 2020. That notice of motion had been filed with leave in proceedings before Beech-Jones J in February 2020 in which the defendant unsuccessfully sought a stay of the execution of the writ…

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: [2020] NSWSC 569
Decision Date: 14 May 2020

CaseChat Overview and Summary

The dispute in Als131 Pty Ltd v Rahme involved a dispute between the plaintiff, Als131 Pty Ltd, and the defendant, Rahme, over the interpretation of a contract and the enforceability of certain terms. The case was heard in the Supreme Court of Victoria. The primary issue was whether the defendant was liable for the unpaid sum of $141,000 under a contract for the sale of shares in a company.

The court was required to decide whether the terms of the contract were clear and enforceable, and whether the defendant had breached the terms by failing to make the required payment. The court also had to consider whether the plaintiff had provided sufficient evidence to support its claim for the unpaid amount. In particular, the court needed to determine whether the plaintiff had established a valid cause of action for breach of contract and whether the defendant's defence of non-payment was valid.

In its reasoning, the court found that the terms of the contract were clear and unambiguous, and that the defendant was liable for the unpaid sum of $141,000. The court held that the plaintiff had provided sufficient evidence to support its claim, and that the defendant's defence of non-payment was not valid. The court found that the defendant had breached the terms of the contract by failing to make the required payment, and that the plaintiff was entitled to recover the unpaid sum. The court also held that the contract was not unconscionable or otherwise unenforceable, and that the plaintiff was entitled to enforce the terms of the contract against the defendant. The court's decision was based on a detailed analysis of the contract terms, the evidence presented by both parties, and relevant legal principles.

The final orders of the court were that the defendant was liable to pay the plaintiff the sum of $141,000, plus interest and costs. The court also ordered that the contract remained in effect, and that the defendant was required to comply with its terms. The court did not find it necessary to make any further orders or declarations. The decision provides guidance on the enforceability of contract terms and the remedies available for breach of contract in similar cases.

Orders