Arab Bank of Australia Limited v Ali Alaouie

[2020] NSWSC 1386

Supreme Court

New South Wales

Medium Neutral Citation:

Arab Bank of Australia Limited v Ali Alaouie & Ors [2020] NSWSC 1386

Hearing dates:

8 October 2020

Date of orders:

8 October 2020

Decision date:

09 October 2020

Jurisdiction:

Common Law

Before:

N Adams J

Decision:

See [63]

Catchwords:

CIVIL PROCEDURE – application to strike out defence – application for default judgment – home loans and purchase of taxi plates – six defendants – multiple securities – first defendant bankrupt – relevant principles

Legislation Cited:

Real Property Act 1900 (NSW), s 57(2)(b)

Bankruptcy Act 1966 (Cth),s 58

Uniform Civil Procedure Rules 2005 (NSW), r 14.28, r 14.3, 16.2, 16.4, r 16.5 and r 16.8

Cases Cited:

Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11

Brimson v Rocla Concrete Pipes Ltd [1982] 2 NLWLR 937

Empire Shipping Co Inc v Owners of the Ship Shin Kobe Maru (1991) 32 FCR 78

GEL Custodian Pty Limited v The Estate of the late Geoffrey Francis Wells [2013] 973

Meckiff v Simpson [1968] VR 62

National Australia Bank Ltd v Strik [2009] NSWSC 184.

Scott v Wondal [2015] NSWSC 1577

Category:

Procedural and other rulings

Parties:

Arab Bank of Australia Limited (Plaintiff)
Ali Alaouie (First Defendant)
The Trustee of the Property of Ali Alaouie, a bankrupt (Second Defendant)
Tawfik Alaouie (Third Defendant)
Kathy Alaouie (Fourth Defendant)
Kamal Ahmed Kamal Ahmed Kamal (Fifth Defendant)
NSW Trustee & Guardian (Sixth Defendant)

Representation:

Counsel:
E Beechey (Plaintiff)

Solicitors:
HWL Ebsworth Lawyers (Plaintiff)
One Group Legal (Third Defendant)
Dakdouk & Associates (Fifth Defendant)

File Number(s):

2020/69240

Judgment

1. By statement of claim filed on 3 March 2020 the plaintiff, Arab Bank of Australia Limited (“the Bank”) seeks orders for the possession of specified real property and delivery up of four taxi plates following a number of loan defaults.

2. There are six named defendants. The first defendant is Mr Ali Alaouie. He is the brother of the third defendant Tawfik Alaouie. The fourth defendant is Kathy Alaouie, who is the sister of both the first and third defendants. The second defendant is the Trustee in Bankruptcy of the first defendant. The fifth defendant is the Executor of the Estate of the late Nazih Alaouie who was the father of the first third and fourth defendants. The sixth defendant is the New South Wales Trustee and Guardian. The estate of Nazih Alaouie’s vests in it prior to the grant of probate.

3. The Bank makes application to strike out the first defendant’s defence and for default judgement against all but the fourth defendant. These applications are based on the following three notices of motion:

1. By notice of motion dated 8 July 2020, the Bank seeks an order striking out the first defendant’s defence and default judgment against him, pursuant to r 14.28, r 16.4, r 16.5 and r 16.8 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).

2. By notice of motion dated 21 July 2020, the Bank seeks default judgment against the third defendant, Tawfik Alaouie.

3. By amended notice of motion dated 21 August 2020, the Bank seeks default judgment against the second, fifth and sixth defendants.

4. No orders are sought against the fourth defendant, Kathy Alaouie, at this time and there was no appearance on her behalf at the hearing of these motions.

5. Ms Beechey of counsel appeared for the Bank. The appearances for the remaining five defendants were as follows.

6. The first defendant, Mr Ali Alaouie, appeared by way of telephone. He was not legally represented. He accepted that, given that a Trustee in Bankruptcy had been appointed in relation to his property, he had no legal standing to oppose the orders made: National Australia Bank Ltd v Strik [2009] NSWSC 184; Scott v Wondal [2015] NSWSC 1577.

7. The second defendant, the Trustee in Bankruptcy, wrote a letter to the Bank’s solicitor dated 16 September 2020 setting out its position. The Bank was advised that, in addition to there being insufficient funds in the estate to justify incurring costs in the proceedings, it would not be in the interest of creditors for the Trustee to actively participate in the conduct of the proceedings. The Trustee confirmed that it consented to the orders sought and did not intend to appear or make any submissions in this matter.

8. The third defendant, engaged a lawyer, Mr Michael Ayache, who filed a submitting appearance in relation to today’s proceedings.

9. The fifth defendant consented to the making of the orders through its legal representative, Mr Ibrahim Dakdouk, who appeared by way of AVL.

10. The sixth defendant, the NSW Trustee and Guardian, wrote a letter to the Bank’s solicitor dated 11 June 2020 acknowledging receipt of service pursuant to s 61 of the Probate and Administration Act1898 (NSW). Its position is that the Trustee’s role is, effectively, that of a nominal defendant with no active duties; as such, it would not be taking part in the proceedings either: GEL Custodian Pty Limited v The Estate of the late Geoffrey Francis Wells [2013] 973.

The Evidence

11. The following affidavits were read in the proceedings on behalf of the Bank:

1. Four affidavits of Rocco Reitano sworn on 8 July 2020 (in support of the strike out application), 21 July 2020 (in support of the default judgment application, 7 August and 7 October 2020 with exhibit RR-1 (Exhibit B). Mr Reitano is the manager of Recoveries at the Bank.

2. Eight affidavits of service of Justin Veitch sworn on 18 March (three affidavits), 12 May, 24 August (two affidavits), 27 August and 1 September 2020.

3. An affidavit of service of Julie Talakovski sworn on 10 June 2020.

4. Three affidavits of service of Rosanna Maiorana sworn on 7 August 2020 with exhibit RM-1 (Exhibit A), and 18 September 2020 (two affidavits).

5. Paragraphs [22] to [26] of the affidavit of Ali Alaouie sworn 30 July 2020

Background

12. The Bank’s claim for possession of the real property and delivery up of the taxi plates is set out in a further amended statement of claim filed on 20 August 2020.

13. On or about 25 September 2002 the Bank advanced the first defendant (Ali Alaouie) and third defendant (Tawfik Alaouie) a sum of $620,407. The following security was provided for the loan:

1. A mortgage over real property described as the “Turella Property” (Certificate of Title Folio Identifier 1/363189). The registered proprietors of this property are the first and third defendants. (“First Turrella Mortgage”);

2. A second mortgage over the Turrella Property (“Second Turrella Mortgage”);

3. A debt and interest guarantee and indemnity dated 1 August 2003 from Nazih Alaouie, the fifth defendant, in favour of the Bank on account of the first and third defendants (“Nazih Home Loan Guarantee”);

4. A mortgage over real property described as the “Bardwell Valley Property” (Certificate of Title Folio Identifier 1/512771). The registered proprietors of this property are the first, third and fifth defendants. (“First Bardwell Valley Mortgage”); and

5. A second mortgage over the Bardwell Valley Property (“Second Bardwell Valley Mortgage”).

14. On or about 30 January 2004, the Bank offered to advance to Tawfik Alaouie a Standard Variable Housing Loan in the amount $170,000.00. In return, he offered as security:

1. The Turrella Mortgages; and

2. A debt and interest guarantee and indemnity dated 4 February 2004 from the first defendant.

The taxi loans

15. On 20 March 2017, the Bank advanced four sums to the first defendant in four separate loans:

1. $179,124.59;

2. $59,483.57;

3. $191,859.97;

4. $211,988.69.

16. In return, the following securities were offered:

1. A goods Mortgage dated 27 March 2007 over taxi T-630;

2. A goods Mortgage dated 27 March 2007 over taxi T-5670;

3. A goods Mortgage dated 23 October 2008 over taxi plate T-1069;

4. A goods Mortgage dated 15 October 2013 over taxi plates T-1069, T-630 and T-5670;

5. A commercial debt and interest guarantee and indemnity dated 24 May 2010 from the third defendant and fifth defendant limited to the amount of $150,000;

6. A commercial debt and interest guarantee and indemnity dated 1 November 2013 from the third defendant and fifth defendant limited to the amount of $200,000;

7. The Bardwell Valley Mortgages.

17. Each of the goods mortgages were registered on the Personal Properties Securities Register (“PSSR”). Three of the taxi plates, described as T-630, T-5670 and T-1069, were owned by the first defendant. The fourth taxi plate, T-1307, was owned by the first defendant and the fourth defendant.

18. There were, thus, six loans entered into in total: two housing loans and four commercial loans

The Defaults

19. In his affidavit sworn 7 August 2020, Mr Reitano outlined that each of the six loan accounts were consistently in default since at least May 2017. Although credits were received between May 2017 and May 2019, each of the loan accounts remained in default for the duration of that period. No credits have been received to any of those loan accounts since August 2019.

20. On 30 April 2019, orders were made for the sequestration of the first defendant, Mr Ali Alaouie, and the appointment of Louise Thompson as the Trustee of his Bankrupt Estate. Pursuant to s 58 of the Bankruptcy Act 1966 (Cth), since that date the interests of the first defendant in the real property and four taxi plates the subject of these proceedings are vested in the Bankruptcy Trustee subject to the mortgages to the Bank.

21. There were two defaults on both the Turrella and Bardwell Valley mortgages: the failure to make payments and the bankruptcy event

22. A default notice pursuant to s 88 of the National Credit Code and s 57(2)(b) of the Real Property Act1900 (NSW) dated 31 July 2019 was served on the first defendant on 2 August 2019. He subsequently emailed the Bank’s solicitor and requested that she deal directly with his nominated solicitor, which she then did.

23. On 30 September 2019, further default notices pursuant to s 88 of the National Credit Code and s 57(2)(b) of the Real Property Act 1900 (NSW) were issued and served on the first defendant on 3 October 2019. Notices were also served on the third defendant on 3 and 4 October 2019.

24. On or about 3 October 2019, the Bank demanded that the fifth defendant repay his guarantee obligations on account of the first and third defendants by default notices under s 88 of the National Credit Code and s 57(2)(b) of the Real Property Act 1900 (NSW). A default notice was also served on 4 October 2019.

25. In addition there was default under the January 2004 home loan to the third defendant on the basis of failure to make loan repayments.

26. In respect of the January 2004 home loan, a default notice dated 31 July 2019 from the Bank to the third defendant was personally served on 2 August 2019 at the Turrella Property. An accelerated demand dated 30 September 2019 was served on 3 October 2019 by being left at the Turrella Property.

27. On 3 October 2019, the Bank also demanded that the first defendant repay his guarantee obligations.

28. As for the taxi loans, a notice of default and demand dated 2 July 2019 was served on the first defendant on 10 July 2019. A notice of default and demand dated 2 July 2019 was served on the fourth defendant, Kathy Alaouie, on 10 July 2019. On 31 July 2019, the Bank demanded that the first and fourth defendants repay the total amount owing. Accelerated demands were made on 31 July and served on 2 August 2019.

29. On 16 October 2019, Mr Ali Alaouie’s solicitor wrote to the Bank. He explained that Mr Ali Alaouie had not attended to the Bank’s requests due to severe anxiety and psychological stress that he had been experiencing for some months. A proposal was advanced as a way of clearing the debt. It was proposed that, in consideration of their consent to the sale of property at 2 Mawson Street, Mr Alaouie transfer his half share at Turrella Property to his brother Tawfik Alaouie, transfer his ownership of the three taxi plates to his father, Nazih Alaouie and transfer his half ownership in the fourth taxi plate to his sister.

30. The Bank’s solicitor did not respond to this letter due to an administrative error until 6 December 2020. In that letter, the Bank sought further information about Mr Alaouie’s proposed resolution of his financial situation by 10 January 2020. It was confirmed that enforcement action would be continued until a “mutually satisfactory resolution” was reached.

31. There was no response to this letter.

32. The statement of claim was filed on 3 March 2020 and served on Mr Alaouie’s solicitor the following day.

The defences

33. The only defendant to file a defence in this matter was the first defendant on 2 June 2020. It was in these terms:

“I Alie Alaouie was depositing on average $1750 per fortnight.

I was made bankrupt

When I was made bankrupt the trustee held all my accounts.

My family was helping me with the funds so I did not lose the house.

Arab Bank Australia would not communicate with me.

I owe 3 taxi plates.

I own half a share in taxi plate

I have titles in 2 Mawson St Bardwell Valley and 20 Hannam St Turrella

My brother and I tried to set up a legal partition to relinquish himself out of 2 Mawson St Bardwell Valley and I relinquish myself out of 20 Hannam St Turrela.

This would off enabled me to own 50% of 2 Mawson St Bardwell Valley. My Brother would off owned 100% of 20 Hannam St Turrella.

Arab Bank did not ask me to sell the taxi plates

I need six months to sell the houses and the taxi plates. This will enable my brother Tawfik Alaouie and my late father Nazih Alaouie get their fair share in the property.

Covid 19 has had an huge impact.”

The strike out application

34. On 8 July 2020, the Bank filed a notice of motion seeking to have this defence struck out under UCPR r 14.28 on the basis that it disclosed no reasonable defence (UCPR, r 14.28(a)) and/or it has a tendency to cause prejudice, embarrassment or delay in the proceedings (UCPR, r 14.28(b)).

35. The Bank relied on the affidavit evidence I have referred to above at [11] in support of its strike out application.

Does the first defendant have any defence?

36. Although it was accepted that he had no standing to oppose the orders sought today, I permitted Mr Ali Alouie the opportunity to outline his position. He stated that he felt disappointed by the approach taken by the Bank. He explained that the Bank had acted too quickly and had not permitted him to sell the properties to repay the money “with dignity”. He claimed that the Bank stopped talking to him.

37. Mr Alaouie also explained that he had suffered from anxiety and depression. He felt let down by the Bank, the Government and his lawyers. When “point to point” drivers such as Uber entered the market he struggled financially with his taxi business. He stated that he had always paid his debts, worked hard all his life and could not believe what had happened to him.

38. Mr Alaouie’s main complaint was that, even after he was declared bankrupt, he and his family had deposited an average of $1,750 per week into an account with the Bank to prevent the loss of the Turella and Bardwell Valley properties and to repay the taxi loans. He stated that the agreement was that this money would later be transferred to the loan accounts. The Bank had $10,000 of this money but did not transfer any of it to the loan account. It was suggested that had the Bank done so he would not have been in default. He also suggested that the Bank should not have been permitted to use the fact of his bankruptcy as a basis to call in its loans

39. At my invitation, Ms Beechey responded to these allegations by reference to the documents in the court book.

40. As for the claim that there had been no defaults, she noted the evidence of Mr Reitano as to consistent defaults between 2017 and 2019. The bank statements, exhibited to that affidavit in volume 2 of the court book, show erratic payments and confirm that the facilities have been consistently in default since at least May 2017.

41. As for the claim that the Bank had not entered any negotiations with him in order to sell the properties without the need for court action, she relied on the correspondence referred to above at [29]-[31].

42. As for the claim that the Bank had not used the funds Mr Alaouie and his family had deposited into the account as payment for the loan, she pointed to the fact that after he was declared bankrupt on 30 April 2019 the Bank was no longer able to do so.

43. As for the basis for calling in the loans, she confirmed that the Bank relied upon two defaults. Under the loan agreements, bankruptcy was a basis for default. The second basis for default was the fact that for two years the accounts had been in arrears at various times. She confirmed that the bankruptcy was not the sole basis upon which the Bank sought the orders for possession against the first defendant.

Consideration

44. I am satisfied that as an undischarged bankrupt Mr Alaouie has no interest in the mortgaged assets. Rather, it is the Bankruptcy Trustee that has standing to challenge the enforcement steps that have been taken by the Bank. No defence has been filed on behalf of the Bankruptcy Trustee. The letter dated 16 September 2020 confirms that the Trustee consents to judgment and does not propose to appear or make submissions.

45. Although it is well established that the power to strike out pleadings should be exercised only in plain and obvious cases (see, Brimson v Rocla Concrete Pipes Ltd [1982] 2 NLWLR 937), I am satisfied that the defence should be struck out. It is deficient in a number of respects. Mason CJ and Gaudron J explained the function of pleadings in Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11 (at 286) as follows (citation omitted):

“The function of pleadings is to state with sufficient clarity the case that must be met. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness.”

46. I have had regard to the fact that allegations in an impugned pleading will ordinarily be taken as accepted: Empire Shipping Co Inc v Owners of the Ship Shin Kobe Maru (1991) 32 FCR 78. But even if I was to accept the matters identified in the defence, they go no further than explaining why there was a default on the loan. They do not identify any basis upon which it could be said that the monies are not owed to the Bank as alleged. Further, the defence is “embarrassing”, in the sense that it is “unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him": Meckiff v Simpson [1968] VR 62 (at 70) per Winneke CJ, Adam and Gowans JJ, cited by Bongiorno J in Gunns Ltd v Marr [2005] VSC 251 at [15].

47. I am satisfied that the defence should be struck out under UCPR r 14.28.

48. Given that I am not satisfied that the first defendant has any defence to the Bank’s claim, the question of leave to re-plead the defence does not arise.

Application for Default judgment

49. The Bank seeks default judgment in this matter in the terms of short minutes of order provided to the Court today. I have already set out the evidence relied upon in support of this application above. I will consider some of it further below.

Consideration

50. Based on the evidence before me, I am satisfied that the Bank holds registered mortgages in respect of which the first and third defendants are both in default. The Bank is entitled to judgments against the first defendant for possession of the properties and delivery of the taxi plates; the third defendant for possession of the properties and a money claim; and the fifth defendant for a money claim (as guarantor). There is no dispute that the monies are owed, no defences have been filed, nor will be, and there is in fact no defence to the Bank’s claim. The second and fifth defendants consented to the orders being made and the third and sixth defendants submitted to the orders of the Court.

50. Despite there being no active opposition to the orders sought, before this court would not make them, there are a number of matters of which it must be satisfied as set out in UCPR Part 16.

51. UCPR r 16.2 defines a defendant as being in default if there has been a failure to file a defence within the time limited by r 14.3(1) or, if a defendant has filed a defence but the court orders that the defence be struck out. The only defence filed in this matter has been struck out. There is clearly a basis for default judgment under this rule.

52. UCPR r 16.3(2) provides that the application must be accompanied by an affidavit of service in relation to the statement of claim and an affidavit in support of the application sworn within 14 days of the date of filing of the application. As required by r 16.3(2), the Bank has filed an affidavit proving service of the statement of claim and the further amended statement of claim on the defendants.

53. Rule 16.4 concerns default judgment for claims for possession of land. The evidentiary requirement is set out in r 16.4(3) as follows:

(3)  The relevant affidavit in support—

(a)  must identify any persons (other than parties to the proceedings) who were in occupation of the whole or any part of the land—

(i)  as at the time the originating process was filed, or

(ii)  if the claim for possession arises from an amendment to the originating process, as at the time the amendment was made,

and, if any such person was in occupation of the land pursuant to a right of occupation under a residential tenancy agreement within the meaning of the Residential Tenancies Act 2010, must contain a statement to that effect, and

(b)  in relation to each such person—

(i)  must state that the person’s occupation of the land is not to be disturbed, or

(ii)  must state that the person is no longer in occupation of any part of the land, or

(iii)  must state that the person has been served with a notice pursuant to rule 6.8 and that the time allowed for the person to apply to the court to be joined as a defendant has now passed,

as the case requires, and

(c)  if the claim for possession of the land arises from a default in the payment of money, must give particulars of the default (including any payments made to date to reduce the amount owing and the current amount owing taking into account any such payments), and

(d)  must state the source of the deponent’s knowledge of the matters stated in the affidavit concerning the occupation of the land and any default in the payment of money referred to in paragraph (c), and

(e)  must state whether costs are claimed and, if so, how much is claimed for costs, indicating—

(i) how much is claimed on account of professional costs (not exceeding the amount fixed by the regulations made for the purposes of section 59 of the Legal Profession Uniform Law Application Act 2014), and

(ii)  how much is claimed on account of filing fees, and

(iii)  how much is claimed on account of the costs of serving the originating process, and

(f)  must state when and how the originating process was served on the defendant.

55. Rule 16.5 concerns default judgment on a claim for detention of goods. The evidentiary requirement is set out in r 16.5(2) as follows:

(2)  The relevant affidavit in support—

(a)  must state which goods have, and which have not, been delivered to the plaintiff since the time the originating process was filed, and

(b)  must give particulars of any payments that the defendant has made to the plaintiff in respect of the goods or state that no such payments have been made, as the case may be, since the time the originating process was filed, and

(c)  must state the source of the deponent’s knowledge of the matters stated in the affidavit concerning the delivery or non-delivery of the goods, and

(d)  must state whether costs are claimed and, if so, how much is claimed for costs, indicating—

(i) how much is claimed on account of professional costs (not exceeding the amount fixed by the regulations made for the purposes of section 59 of the Legal Profession Uniform Law Application Act 2014), and

(ii)  how much is claimed on account of filing fees, and

(iii)  how much is claimed on account of the costs of serving the originating process, and

(e)  must state when and how the originating process was served on the defendant.

56. Rule 16.8 concerns default judgment on mixed claims and is in these terms:

(1)  If the plaintiff’s claim against a defendant in default includes any 2 or more of the claims referred to in this Part, and no other claim, judgment may be given for the plaintiff against the defendant on any of those claims as if it were the plaintiff’s only claim for relief against that defendant.

(2)  In the case of two or more such claims, the relevant affidavit in support must comply with the requirements of this Part in relation to each of those claims.

57. I am satisfied that the affidavits of Mr Reitano provide evidence that UCPR, rr 16.4(3) and 16.5(2), have been complied with in relation to all of the relevant defendants. Further, the affidavits of service of Mr Veitch show that the statement of claim and further amended statement of claim were served on the relevant defendants and the occupants of the Turella and Bardwell Valley properties.

58. The Bank’s only claims against the first defendant are for possession of the two relevant properties in Turrella and Bardwell Valley and delivery up of the taxi plates. There is no monetary claim made against him. I am satisfied that it is appropriate to make the orders sought against both the Bankruptcy Trustee and the first defendant. Although it is the Bankruptcy Trustee in whom the real property and four taxi plates are currently vested (subject to the mortgages to the Bank), there is always the theoretical possibility that the first defendant’s bankrupt status could cease.

59. In his affidavit of 7 October 2020, Mr Rocco Reitano, deposed that, as at 7 October 2020, the total amount owed by the third defendant was $1,146,885.97 (inclusive of interest and costs) and the total amount owed by the fifth defendant was $1,020,802.16 (inclusive of interest and costs).

60. As for the orders sought against the third defendant, he has filed a submitting appearance. The Bank’s claim against him is for possession of the properties and monetary judgment.

61. As for the fifth defendant, the Executor of the late Nazih Alaouie’s Estate, he consented to the orders being sought. I am satisfied that the basis for making those orders has been established.

62. Finally, as for the orders made against the Public Trustee, I am satisfied that the property of the late Mr Nazih Alaouie is held by it until probate and it is necessary for orders to made against it to reflect this.

ORDERS

63. Accordingly, I make the following orders:

First Defendant

1. The Defence filed by the First Defendant on 2 June 2020 is struck out.

2. Pursuant to r 16.8(1) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), judgment against the First Defendant in favour of the Plaintiff for:

1. possession of the First Defendant’s share of the land described in Certificate of Title Folio Identifier 1/363189 and known as 20 Hannam Street, Turrella NSW 2205;

2. possession of the First Defendant’s share of the land described in Certificate of Title Folio Identifier 1/512771 and known as 2 Mawson Street, Bardwell Valley NSW 2207; and

3. delivery up of:

1. the taxi plates bearing registration numbers T-630; T-5670, T-1069 and T-1307 and any renewal of, replacement of or substitution for them; and

2. the certificates of registration for each of the taxi plates bearing registration numbers T-630; T-5670, T-1069 and T-1307 and any renewal of, replacement of, or substitution for the certificates of registration for them.

3. Leave to the Plaintiff to issue writs of possession in respect of the land referred to at 2(a) and (b) above.

Second Defendant

4. Pursuant to r 16.8(1) of the UCPR, judgment against the Second Defendant in favour of the Plaintiff for:

1. possession of the First Defendant’s share of the land described in Certificate of Title Folio Identifier 1/363189 and known as 20 Hannam Street, Turrella NSW 2205;

2. possession of the First Defendant’s share of the land described in Certificate of Title Folio Identifier 1/512771 and known as 2 Mawson Street, Bardwell Valley NSW 2207; and

3. delivery up of:

1. the taxi plates bearing registration numbers T-630; T-5670, T-1069 and T-1307 and any renewal of, replacement of or substitution for them; and

2. the certificates of registration for each of the taxi plates bearing registration numbers T-630; T-5670, T-1069 and T-1307 and any renewal of, replacement of, or substitution for the certificates of registration for them.

5. Leave to the Plaintiff to issue writs of possession in respect of the land referred to at 4(a) and (b) above.

Third Defendant

6. Pursuant to r 16.8(1) of the UCPR, judgment against the Third Defendant in favour of the Plaintiff for:

1. possession of the Third Defendant’s share of the land described in Certificate of Title Folio Identifier 1/363189 and known as 20 Hannam Street, Turrella NSW 2205;

2. possession of the Third Defendant’s share of the land described in Certificate of Title Folio Identifier 1/512771 and known as 2 Mawson Street, Bardwell Valley NSW 2207;

3. the amount of $1,092,491.39;

4. interest in the amount of $49,097.58; and

5. the Plaintiff’s costs in the amount of $5,297.00.

7. Leave to the Plaintiff to issue a writ of possession in respect of the land referred to at 6(a) and (b) above.

Fifth Defendant

8. Pursuant to r 16.8(1) of the UCPR, judgment against the Fifth Defendant in favour of the Plaintiff for:

1. the amount of $971,450.56;

2. interest in the amount of $43,890.60; and

3. the Plaintiff’s costs in the amount of $5,461.00.

Sixth Defendant

9. Pursuant to r 16.8(1) of the UCPR, judgment against the Sixth Defendant in favour of the Plaintiff for possession of the Deceased Estate of Nazih Alaouie’s share of the land described in Certificate of Title Folio Identifier 1/512771 and known as 2 Mawson Street, Bardwell Valley NSW 2207.

10. Leave to the Plaintiff to issue a writ of possession in respect of the land referred to at 9 above.

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Decision last updated: 09 October 2020