Charara v City First Holdings Ltd

[2017] NSWDC 448

District Court

New South Wales

Medium Neutral Citation:	Charara v City First Holdings Ltd [2017] NSWDC 448
Hearing dates:	20 October 2017
Date of orders:	20 October 2017
Decision date:	20 October 2017
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1)   Plaintiff’s notice of motion filed 2 September 2017 granted. (2)   Grant the charging order in the terms sought.
Catchwords:	JUDGMENTS AND ORDERS — Enforcement — Charging orders
Legislation Cited:	Uniform Civil Procedure Rules 2005, r 39.44
Category:	Procedural and other rulings
Parties:	Jamal Charara – plaintiff City First Holdings Ltd ACN 132 619 571 – first defendant Elizabeth Gruezo (aka) Elizabeth Visscher (aka) Elizabeth Sinanovic - second defendant Justine Ayeras - third defendant Justine Ayeras t/as City First Financial Services BN98381742 - fourth defendant City First Financial Services BN98381742 - fifth defendant
Representation:	Counsel:   Solicitors:
File Number(s):	2009/334576
Publication restriction:	None

Judgment

1. On 8 September 2017 I refused an ex parte application on the papers to grant a charging order in respect of two motor vehicles. I listed five matters of concern:

1. an old judgment;

2. problematic evidence of service;

3. a claim inconsistent with the pleading;

4. the absence of the parties; and

5. no proof of service of the application for a charging order.

2. The application for a charging order was listed before me today. There was no appearance for the judgment debtor. The judgment creditor, Mr Jamal Charara, appeared for himself.

3. Mr Charara claimed to have 25 years' experience in the courts and on one document claimed to be an "experienced litigant in the High Court". Mr Charara denied being a solicitor and refused to answer my enquiry as to whether he had a law degree.

4. As to the old judgment obtained more than eight years ago, Mr Charara submitted that he had unsuccessfully taken a number of steps to recover the judgment debt in the past. The only time he recovered any funds, he said, was approximately $80 he received as a result of issuing a garnishee on the second defendant's bank account. The judgment for an amount of $63,799.26 is not stale and I am persuaded that its age should not preclude a charging order.

5. The second matter, the problematic evidence of service, arises from two affidavits from the original lender and assignor to Mr Charara, a Mr Ben Davies, who deposed that on 14 April 2009 he served documents on the third defendant by pushing them under the door of an address in Fairfield. In the subsequent affidavit, without referring to his earlier conduct, he said that on 14 April 2009 he served the third defendant personally in Liverpool. To remove the discomfort between the two affidavits, Mr Charara requests the Court to ignore the first affidavit, but I do not regard this as appropriate.

6. The first affidavit contains evidence of personal service of the second defendant, Ms Elizabeth Gruezo. Further, a third affidavit of service, this time by Mr Charara himself on 22 April 2009, asserts that on the same day, 14 April 2009, service by post was utilised.

7. As Ms Gruezo is the owner of the vehicles the subject of the charging order, it seemed to be of some importance that she have notice of the proceedings. There is no contrary evidence to the personal service upon her by Mr Davies and postal service by Mr Charara. Further, recently Ms Gruezo's account was debited approximately $80 pursuant to a garnishee, and she has been served with subpoenas by post. These matters appear not to have produced any action by Ms Gruezo.

8. The circumstances I have recounted persuade me that my concern about Mr Davies' affidavits of service regarding the third defendant should not preclude the charging order sought in respect of Ms Gruezo’s property. The circumstance that both Ms Gruezo and the third defendant, Justine Ayeras, the natural person defendants in the proceedings, appear to have used other names in the past is also a matter I have taken into account.

9. As to the third concern, that the claim is inconsistent with the pleading, Mr Charara explained how the amount claimed was calculated. On the explanation he gave, it seems that there is an excessive claim of interest on one debt, but no claim, including of interest, in respect of the other debt. Given the existing default judgment, I am not dissuaded from granting a charging order by reason of this concern.

10. The fourth concern, the absence of the parties, is no longer the case as Mr Charara has appeared today self‑represented. The other parties were called outside the court before the proceedings commenced, but there was no appearance.

11. Finally, although there remains no proof of service of the charging order, which Mr Charara conceded had not occurred, I note that r 39.44(2)(b) of the Uniform Civil Procedure Rules 2005 relieves the party of this as a requirement, subject to a court order. In all the circumstances, I do not propose to “[order] otherwise” in accordance with r 39.44(2). I also take into account that the charging orders are in respect of two vehicles, of which Ms Gruezo is the registered owner, which seem to be of modest value and one of which, on the evidence, is not currently registered. The apparent value of the vehicles is far less than the amount of the judgment.

12. In all the circumstances, I propose to grant the charging order in the terms sought, noting that the default creditor has received $80.56 in respect of the judgment debt.

13. The orders of the Court are:

1. Plaintiff's notice of motion filed 2 September 2017 granted.

2. Grant the charging order in the terms sought.

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Decision last updated: 28 November 2018