Benjamin and Khoury Pty Ltd v Rahme

[2021] NSWSC 1038

Supreme Court

New South Wales

Medium Neutral Citation:	Benjamin & Khoury Pty Ltd v Rahme [2021] NSWSC 1038
Hearing dates:	12 August 2021
Date of orders:	12 August 2021
Decision date:	12 August 2021
Jurisdiction:	Common Law
Before:	Cavanagh J
Decision:	The notice of motion filed by the defendants is dismissed.
Catchwords:	CIVIL PROCEDURE – Hearings - Adjournment
Legislation Cited:	Nil
Cases Cited:	Nil
Category:	Procedural rulings
Parties:	Benjamin & Khoury Pty Ltd (Plaintiff) Gabriel Rahme (First Defendant) Dana Rahme (Second Defendant)
Representation:	Counsel: P Afshar (Plaintiff) C Bevan (Defendants) Solicitors: Daniel Jude Lawyers (Plaintiff) Solon Lawyers (Defendants)
File Number(s):	2014/262387
Publication restriction:	None

REVISED EX TEMPORE Judgment

1. This matter comes before me by way of a notice of motion filed on 9 August 2021 by the defendants. The defendants seek that the hearing commencing 24 August 2021 be vacated and the matter be allocated for hearing at another time.

2. The reason for the application is that the solicitor for the defendants, Michael Soulos, is scheduled to undergo knee surgery on 18 August 2021.

3. The defendants rely on an affidavit from Mr Soulos of 7 August 2021. Attached to that affidavit is a letter from his specialist Dr Timothy Yeoh, dated 3 August 2021, which confirms that Mr Soulos is scheduled for surgery on 18 August 2021 and will remain undergoing inpatient rehabilitation for a further period up to 1 September 2021.

4. However, Mr Bevan, who appears on behalf of the defendants, says that it is likely Mr Soulos will be at home by the date of the hearing, which is 24 August 2021.

5. Mr Afshar who appears on behalf of the plaintiff says that, if it is necessary to vacate the matter, his client would not oppose a change in the hearing date provided that it can come on for hearing very shortly thereafter.

6. However, if it is going to take some time for the matter to come back for a hearing then his instructions are to oppose the hearing date being vacated.

7. The aspect of the matter which is listed for hearing on 24 August is a motion to set aside a judgment obtained by the plaintiff against the defendants.

8. That motion was filed by the defendants as long ago as 9 September 2020. The motion was originally listed before Harrison AsJ on 25 March 2021 but that hearing date was vacated. I understand that it was vacated for a variety of reasons, although I am not sure what those reasons are.

9. I note there have been some Notices of Change of Solicitor filed on behalf of the defendants, although, again, it is not clear to me that the changes have been changes in law firms as opposed to solicitors within the same law firm.

10. In any event, the point of the evidence from Mr Soulos and indeed the submissions from Mr Bevan is that Mr Soulos has intimate knowledge of the matter; that he has been involved in the matter for a long while; that his clients are relying on him to be present; and that Mr Bevan will require assistance from Mr Soulos during the running of the hearing.

11. In circumstances in which he will be recovering from a knee operation he may not be able to provide the assistance which is required. Mr Bevan also emphasises that, in his more recent experience, there are difficulties in obtaining proper assistance from solicitors through text messages when they are not present and able to assist during the running of the case.

12. However, he also appropriately and frankly acknowledges that all evidence has been served and that, subject to amendments to a court book, the evidence is ready to be presented.

13. Mr Bevan also submits this is a very important matter for his clients and that if they are not successful on the motion the plaintiff may take steps to render them bankrupt.

14. I can only say that no doubt this is an important motion but the Court is continuing to deal with and has been dealing with for the past 15 months matters through audio-visual link and sometimes on the telephone, almost all of which are of particular importance to the participants or parties.

15. Whilst I am sympathetic to the idea that in some cases counsel might not obtain the best assistance from a solicitor when the solicitor is not sitting next to counsel, the reality is that this is the only way matters can be conducted at this time. The Court's own experience is that solicitors are often dialling in from their homes. Indeed since the current lockdown all solicitors and barristers have been dialling in from different locations.

16. It has been nearly 12 months since the motion to set aside the judgment was filed. The hearing has already been vacated once.

17. The defendants may wish Mr Soulos to give as much assistance as possible but there is still a week before he has to have his operation and there is ample time for any instructions, Zoom meetings and teleconferences to take place.

18. Further the hearing is six days after the knee operation. In addition at least on the information available to me, there may be another person who might be able to provide assistance to Mr Bevan. Frankly, I do not understand what particular work Mr Soulos would have to be doing in the few days before the hearing of the motion that could not be done over the next seven days.

19. Unfortunately in these particular times the Court's resources are scarce, hearing time is valuable and cases are being conducted differently from the way they might have been conducted only 15 months ago.

20. In the circumstances I am not satisfied that the pending knee operation, which the solicitor for the defendants will be having, necessitates the vacation of the hearing date. The motion is dismissed.

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