Chahwan v Euphoric Pty Ltd

[2010] NSWSC 445

CITATION:	Chahwan v Euphoric Pty Ltd & Ors [2010] NSWSC 445
HEARING DATE(S):	10 May 2010
JUDGMENT DATE :	10 May 2010
JURISDICTION:	Equity Division
JUDGMENT OF:	Palmer J
EX TEMPORE JUDGMENT DATE:	10 May 2010
DECISION:	Plaintiff’s Statement of Claim dismissed with indemnity costs.
CATCHWORDS:	SUMMARY DISMISSAL – ABUSE OF PROCESS – Plaintiff repeatedly failed to comply with Court’s directions to bring matter to trial – inference drawn that Plaintiff commenced proceedings to stall Defendants’ recovery of judgment debt.
CATEGORY:	Principal judgment
PARTIES:	Elie Chahwan (Plaintiff) Euphoric Pty Ltd t/as Clay & Michel (First Defendant) Bycoon (in liq) Pty Ltd (Seventh Defendant)
FILE NUMBER(S):	SC 2005/258267
COUNSEL:	S. Diab (Sol) (Plaintiff) G. Lucarelli (First Defendant)
SOLICITORS:	Simons Diab & Associates (Plaintiff) Blake Dawson Waldron (First Defendant)

2005/258267 Chahwan v Euphoric Pty Ltd & Ors

JUDGMENT – Ex tempore

10 May , 2010

1 This is an application by the Defendants for dismissal of these proceedings for the Plaintiff’s want of prosecution and failure to comply with the Court's directions.

2 These proceedings have been on foot for a long time. They are part of an extremely complicated and tortuous set of proceedings whereby Euphoric has been endeavouring to recover a judgment for a substantial debt from the Plaintiff and from Bycoon Pty Ltd, which is now in liquidation.

3 The history of the litigation is set out in a number of affidavits, particularly the affidavits of Ms Huggins of 18 June 2008 and 4 March 2010. There has been long delay on the part of the Plaintiff in bringing and prosecuting these proceedings and a long history of the Plaintiff's failure to comply with the Court's directions.

4 On 29 March, when this matter was before the Court on an application to strike out the proceedings for the Plaintiff’s failure to comply with directions, I said to Mr Diab, the solicitor who appears for the Plaintiff:

“The matters cannot be conducted in this way, Mr Diab. This matter is becoming a mockery of the Court system. You have a personal obligation regarding the conduct of these proceedings. The Plaintiff has purchased one further week's indulgence, the price of which is that he will pay the first defendant's costs of today.”

5 On 6 April, when this matter was again before me, I said to Mr Diab:

“The proceedings will be case managed on an expeditious timetable with a view to obtaining the earliest possible hearing date. I expect strict observance of the Court timetable by both sides. I will allow the Plaintiff six weeks to put his evidence on, but that will be it.”

6 I then made orders for the service of the Plaintiff's lay witness statements by 30 April and for the Plaintiff to give verified discovery of specified documents by 20 April. None of those directions have been complied with.

7 It emerges in cross examination of Mr Diab today that, far from being able to comply with the directions for the service of affidavits, he has not yet even taken statements from the only two witnesses who would be able to give evidence to support the Plaintiff’s case in these proceedings.

8 The impression that I had earlier gained that these proceedings are, indeed, a mockery has been confirmed. The Plaintiff has commenced these proceedings to stall recovery of a judgment debt by the Defendants and is endlessly spinning excuses for his failure to comply with the Court’s directions to get the matter ready for trial. I am satisfied that these proceedings are an abuse of process in their conception and in their prosecution – except that there has been no genuine prosecution by the Plaintiff. The Plaintiff's Statement of Claim is dismissed.

9 The Plaintiff will pay the Defendants’ costs of the proceedings on the indemnity basis.

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