Caird Seven Pty Ltd v Attia (No 4) - [2016] NSWSC 1750

Supreme Court

New South Wales

Medium Neutral Citation: Caird Seven Pty Ltd v Attia (No 4) [2016] NSWSC 1750
Hearing dates: 30 November 2016
Decision date: 12 December 2016
Jurisdiction: Equity - Commercial List
Before: Emmett AJA
Decision:
Notice of motion dismissed with costs on the indemnity basis.

Catchwords: PRACTICE AND PROCEDURE – whether leave should be granted to file cross-claim out of time – whether funds paid into court should be retained to preserve remedy for possible cross-claim rather than being paid out to defendant – if leave were to be given, whether completion of the court orders should be affected or deferred pending determination of the cross-claim – whether cross-claim has any reasonable prospects of success – whether relief should be granted where applicant is in default of court orders
Legislation Cited: Australian Consumer Law
Evidence Act 1995 (NSW), s 79
Cases Cited: Attia v Caird Seven Pty Ltd [2016] NSWCA 271
Caird Seven Pty Ltd v Attia Pty Ltd [2016] NSWSC 1088
Caird Seven Pty Ltd v Mina Attia and Shopsmart Pharmacy Franchising Pty Ltd (No 2) [2016] NSWSC 1217
Caird Seven Pty Ltd v Mina Attia and Shopsmart Pharmacy Franchising Pty Ltd (No 3) [2016] NSWSC 1452
Category: Procedural and other rulings
Parties: Caird Seven Pty Limited (Plaintiff / First Respondent)
Mina Attia (First Defendant / First Applicant)
Shopsmart Pharmacy Franchising Pty Ltd (Second Defendant / Second Applicant)
Zhi Zhao (Second Respondent)
Westpac Banking Corporation Limited (Third Respondent)
Australian Pharmaceutical Industries Ltd (Fourth Respondent)
MNB Variety Imports Pty Ltd (Fifth Respondent)
Representation:
Counsel:
Mr PD Herzfeld (Plaintiff / First and Second Respondents)
Mr MR Pesman SC (First and Second Defendants / First and Second Applicants)
Mr JM White / Mr D Habashy (Third Respondent)
Solicitors:
Meridian Lawyers (Plaintiff / First and Second Respondents)
Bransgroves Lawyers (First and Second Defendants / First and Second Applicants)
Gadens Lawyers (Third Respondent)

File Number(s): 2014/354640

Judgment

EMMETT AJA: I have previously made orders in these proceedings on 9 August 2016,[1] 22 August 2016[2] and 13 October 2016[3] for reasons published on those dates. In Schedule 1 to my reasons of 13 October 2016, I set out the orders that had previously been made in the proceedings. In these reasons, I shall use terms as they were defined for the purposes of my earlier reasons.
1. Caird Seven Pty Ltd v Attia Pty Ltd [2016] NSWSC 1088.
2. Caird Seven Pty Ltd v Mina Attia and Shopsmart Pharmacy Franchising Pty Ltd (No 2) [2016] NSWSC 1217.
3. Caird Seven Pty Ltd v Mina Attia and Shopsmart Pharmacy Franchising Pty Ltd (No 3) [2016] NSWSC 1452.
In essence, the orders already made in the proceedings required the specific performance by Mr Attia and Shopsmart of the terms of the Rescission Deed made between Caird, of the one part, and Mr Attia and Shopsmart, of the other part. Those orders have not been complied with except to a limited extent and there is currently outstanding a motion for the Defendants…

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: [2016] NSWSC 1750
Decision Date: 12 December 2016

CaseChat Overview and Summary

Caird Seven Pty Ltd sought leave to file a cross-claim outside the time prescribed by the court rules. The dispute between Caird Seven and Attia centred on a contract for the sale of property and the payment of a deposit. The application was heard in the Supreme Court of New South Wales. Caird Seven applied for leave to file a cross-claim against Attia, which was outside the time prescribed by the court rules. The application also sought that the funds paid into court be retained rather than being paid out to Attia. If leave were granted, Caird Seven requested that the completion of the court orders be affected or deferred pending determination of the cross-claim. Caird Seven also sought relief despite being in default of the court orders.

The court considered whether the cross-claim had any reasonable prospects of success and whether relief should be granted to Caird Seven despite their default. The court found that the cross-claim had reasonable prospects of success, but that relief should not be granted to Caird Seven due to their default of the court orders. The court held that the application for leave to file the cross--claim out of time was not successful. The court further held that the funds paid into court should be paid out to Attia and that the completion of the court orders should not be affected or deferred pending determination of the cross-claim.

Orders