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

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

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: [2021] NSWSC 1038
Decision Date: 12 August 2021

CaseChat Overview and Summary

In this case, the plaintiffs, Benjamin and Khoury Pty Ltd, sought an adjournment of a hearing in relation to a dispute with the defendant, Rahme. The matter involved claims of breach of contract and associated damages. The case was heard in the Federal Circuit and Family Court of Australia. The plaintiffs argued that they needed more time to prepare their case, citing the complexity of the issues and the need for further discovery of documents. They contended that without an adjournment, they would not be able to adequately present their case.

The central legal issues before the court were whether the plaintiffs had demonstrated a good reason for the adjournment and whether granting the adjournment would result in a fair outcome for both parties. The court had to consider the principles of justice and fairness in the administration of proceedings, including the need to avoid unnecessary delays and the potential prejudice to either party. The plaintiffs' request hinged on the argument that the adjournment was necessary to ensure a just outcome, as they had only recently obtained critical documents and required time to review and incorporate them into their case.

The court found that while the plaintiffs had demonstrated a genuine need for additional time to prepare, the request for an adjournment was not without merit. However, the court also considered the potential prejudice to the defendant if the hearing was delayed further. The court balanced the principles of fairness and the efficient administration of justice, and determined that an adjournment was warranted but should be limited to a reasonable period. The court set a specific date for the next hearing, directing the parties to use the interim time to finalise their respective positions and to minimise further delays.

The final orders of the court included an adjournment of the hearing to a specified date, with instructions for the parties to file updated case summaries and to refrain from further adjournments unless absolutely necessary. The court also directed the parties to attend a pre-hearing conference to discuss the progress of their preparation and to facilitate a more efficient hearing process.

Orders