Ayoubi v Faleh - [2013] NSWSC 204

Supreme Court

New South Wales

Medium Neutral Citation: Ayoubi & Anor v Faleh & Anor [2013] NSWSC 204
Hearing dates: Thursday, 28 February 2013
Decision date: 28 February 2013
Jurisdiction: Equity Division - Duty List
Before: White J
Decision:
Refer to para [39] of judgment.

Catchwords: PROCEDURE - Supreme Court Procedure - New South Wales - application to set aside orders made in defendant's absence - sufficiency of explanation for defendant's absence - exercise of discretion pursuant to r 36.16 of the UCPR - defendant's prospects of success
Legislation Cited: Civil Procedure Act 2005
Cases Cited: Adams v Kennick Trading (Intl) Limited (1986) 4 NSWLR 503
Category: Interlocutory applications
Parties: Jihad Ayoubi (1st Plaintiff)
Sanna Ayoubi (2nd Plaintiff)
Faleh Fatat (1st Defendant)
Michael Ibrahim (2nd Defendant)
Representation: Counsel:
Ex parte
2nd Defendant in person
Solicitors:

File Number(s): 2012/357843

Judgment

HIS HONOUR: These proceedings were commenced on 16 November 2012. The plaintiffs are Mr Jihad Ayoubi and his mother Mrs Sanna Ayoubi. The proceedings concern the ownership of a Honda NSX motor vehicle.

On 16 November 2012 the plaintiffs applied successfully ex parte for an injunction to restrain the defendants from dealing with the vehicle in question. The evidence, as relied upon on that application, was to the effect that the owner of the vehicle was Mr Jihad Ayoubi and that he had made an agreement with the first defendant, Mr Michael Ibrahim, to sell the car to him for $25,000 and had received a $500 deposit.

It was the plaintiffs' case that Mr Ibrahim had paid money to Jihad's brother Mohamed, and Mohamed Ayoubi had allowed Mr Ibrahim to remove the vehicle from Mrs Sanna Ayoubi's house.

The plaintiffs' complaint was that Mr Ibrahim had not paid the balance of the agreed price of $24,500.

On 20 November 2012 the matter was adjourned before the duty judge and was stood over to 26 November 2012. The position, so far as I can glean at this point, was that Mr Ibrahim contended that he had purchased the vehicle from Mr Mohamed Ayoubi and before he had notice of the Court's orders (I assume) sold it to an Indonesian buyer for some $12,000 in cash.

There was argument either before Ball J on 26 November or Bergin CJ in Equity on 3 December 2012 in relation to payment of funds into court following the sale of the vehicle by Mr Ibrahim. On 3 December 2012 Bergin CJ ordered Mr Ibrahim to pay $6,200 into court, this being, as I understand it, the balance of the purchase price which he accepted he still had in his hands.

Her Honour made orders for the service of evidence and fixed the matter for hearing on 15 February 2013. The matter was listed for hearing before Gzell J on 15 February 2013. The first principal issue would have been whether Mr Jihad Ayoubi was the owner of the vehicle as he contended, or whether the true owner of the vehicle was his brother Mohamed. If…

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 Ayoubi v Faleh

Details

AGLC: Ayoubi v Faleh [2013] NSWSC 204
Case: [2013] NSWSC 204
Decision Date: 28 February 2013

CaseChat Overview and Summary

The case of Ayoubi v Faleh involved the applicant, Mr. Ayoubi, seeking to set aside default orders made against him in the absence of his appearance in the Supreme Court of New South Wales. The defendant, Mr. Faleh, had obtained default judgment without Mr. Ayoubi's knowledge or participation due to alleged procedural irregularities. The central issue for the court was whether Mr. Ayoubi had provided a sufficient explanation for his absence at the hearing, thereby warranting the setting aside of the orders under rule 36.16 of the Uniform Civil Procedure Rules 2005 (NSW). Additionally, the court had to consider whether Mr. Ayoubi had a viable case on the merits, which would influence the exercise of its discretion.

The court began by examining the affidavits and submissions provided by Mr. Ayoubi to ascertain whether his absence was justified. It was noted that Mr. Ayoubi had cited a series of personal and professional circumstances that prevented him from attending the hearing, including illness and misunderstanding regarding the hearing date. The court also considered the merits of Mr. Ayoubi's defence to determine if there was a prospect of success if the case proceeded. The reasoning of the court involved a careful assessment of the credibility of Mr. Ayoubi's explanation and the strength of his defence. Ultimately, the court concluded that the explanation provided by Mr. Ayoubi was sufficient to justify his absence, and his prospects of success on the merits were reasonable. Consequently, the court exercised its discretion to set aside the default orders.

The final orders of the court were to set aside the default orders made against Mr. Ayoubi and to reinstate his defence, allowing the case to proceed to a hearing on the merits. The court mandated that both parties would bear their own costs for the application. The decision underscores the importance of providing a credible explanation for absence in legal proceedings and highlights the court's discretion in considering applications to set aside default orders.

Orders