Dabboussi v Ilend Capital Pty Ltd - [2024] NSWSC 1055

Supreme Court

New South Wales

Medium Neutral Citation: Dabboussi v Ilend Capital Pty Ltd [2024] NSWSC 1055
Hearing dates: On the papers
Decision date: 21 August 2024
Jurisdiction: Equity - Real Property List
Before: Peden J
Decision:
See [33]

Catchwords:
CIVIL PROCEDURE — Default judgment — Where proceedings commenced by summons — Where defendant failed to file responsive evidence — Whether default judgment should be entered for relief under s 74MA Real Property Act 1900 (NSW), relief under the Personal Property Securities Act 2009 (Cth) or declaratory relief.

Legislation Cited:
Civil Procedure Act 2005 (NSW) ss 26, 61
Personal Property Securities Act 2009 (Cth) ss 178, 182
Real Property Act 1900 (NSW) s 74MA
Uniform Civil Procedure Rules 2005 (NSW) rr 13.1, 16.1, 16.2, 16.10

Cases Cited:
Abraham v Abraham [2012] NSWSC 254
Ainsworth v Criminal Justice Commission (1992) 175 CLR 562
Australia Capital Financial Management Pty Ltd v Australian Financial Complaints Authority Ltd [2022] NSWCA 204
CIMIC Group Limited v AIG Group Limited [2022] NSWSC 999
Dandaloo Pty Ltd v Iali [2017] NSWSC 1738
GPI Leisure Corporation Ltd (in liq) v Yuill [1997] NSWSC 292
In the matter of Bleecker Property Group Pty Ltd (In Liquidation) [2023] NSWSC 1071
QBE Insurance (Aust) Ltd v Thornton [2012] NSWSC 217
Termijtelen v Van Arkel [1974] 1 NSWLR 525

Category: Procedural rulings
Parties: Ghina Dabboussi (First Plaintiff)
CoreAssist Pty Ltd (Second Plaintiff)
Ilend Capital Pty Ltd (Defendant)
Representation:
Counsel:
T Wong (Plaintiffs)
Solicitors:
Skaf Lawyers (Plaintiffs)
Juris League (Defendant)

File Number(s): 2024/00082704
Publication restriction: Nil

JUDGMENT

Ms Ghina Dabboussi, the first plaintiff, is the sole director of CoreAssist Pty Ltd, the second plaintiff. By amended summons filed on 19 July 2024, the plaintiffs seek an order under s 74MA Real Property Act 1900 (NSW) for the removal of a caveat lodged by the defendant, Ilend Capital Pty Ltd, over a property in Bass Hill, owned by Ms Dabboussi, as sole proprietor (Bass Hill Property).
The plaintiffs also seek:

An order removing “any security interest” registered by the defendant against the plaintiffs on the Personal Property Securities Register;

A declaration that the plaintiffs are not liable to the defendant under a “Brokerage Agreement” dated 15 June 2022; and

An order that the defendant pay the plaintiffs’ costs.

The defendant has filed a notice of appointment of solicitor and has appeared, through its solicitor, at directions hearings. However, the defendant has failed to comply with the Court’s orders for the filing of responsive evidence.
On 3 April 2024, the matter was referred to court-annexed mediation pursuant to s 26 Civil Procedure Act 2005 (NSW). A mediation date of 13 June 2024 was fixed, but the mediation did not proceed, apparently because the defendant failed to attend, and its solicitors could not obtain instructions.
By amended notice of motion, the plaintiffs presently seek default judgment, pursuant to r 16.10 Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and s 61(3)(g) Civil Procedure Act. In the alternative, the plaintiffs seek summary judgment pursuant to r 13.1 UCPR.…

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.

Continue reading Dabboussi v Ilend Capital Pty Ltd

Details

AGLC: Dabboussi v Ilend Capital Pty Ltd [2024] NSWSC 1055
Case: [2024] NSWSC 1055
Decision Date: 21 August 2024

CaseChat Overview and Summary

Dabboussi v Ilend Capital Pty Ltd was a case heard by the Supreme Court of New South Wales. The plaintiff, Dabboussi, sought relief under the Real Property Act 1900 (NSW), the Personal Property Securities Act 2009 (Cth), and declaratory relief against the defendant, Ilend Capital Pty Ltd. The proceedings were initiated by summons, and the defendant failed to file any responsive evidence. The central issue before the court was whether default judgment should be entered against the defendant for the requested relief. The court was tasked with determining the appropriate relief for the plaintiff under the given circumstances, considering the defendant's failure to respond.

The court considered the nature of the relief sought by the plaintiff and the statutory provisions that applied. It noted that the plaintiff's claims encompassed real property, personal property, and declaratory relief. The court also took into account the legislative intent behind the statutes involved, which aimed to provide quick and effective remedies to claimants in appropriate cases. Given the defendant's failure to provide any defence, the court found that entering a default judgment was warranted. The court recognised the importance of ensuring that the legal process was not unnecessarily prolonged when a party chose not to participate.

After carefully reviewing the evidence and arguments presented, the court determined that a default judgment should be entered in favour of the plaintiff. The judgment included relief under the Real Property Act, the Personal Property Securities Act, and declaratory relief as sought by the plaintiff. The court emphasised that the relief granted was limited to what was specifically claimed and supported by the evidence provided by the plaintiff. This decision underscores the court's commitment to upholding the integrity of the legal process while providing a fair outcome for the claimant in cases where the defendant fails to respond.

Orders