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Devine Real Estate v Agha

Devine Real Estate v Agha

Case [2022] NSWSC 543 5 May 2022

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Appeal

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Devine Real Estate v Agha & Anor [2022] NSWSC 543
Hearing dates: 2 May 2022
Date of orders: 3 May 2022
Decision date: 05 May 2022
Jurisdiction: Equity - Expedition List
Before: Sackar J
Decision:
Motion dismissed

Catchwords:
PROCEDURE – Motion to reopen following judgment and appeal – Application of UCPR r 36.16(3)

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Corporations Act 2001 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
260 Oxford Street Pty Ltd & Ors v Premetis & Anor [2006] NSWCA 96
Agha v Devine Real Estate Concord Pty Ltd & Ors [2021] NSWCA 29
Autodesk v Dyason (No 2) (1993) 176 CLR 300
Bailey v Marinoff (1971) 125 CLR 529
Boateng v Dharamdas [2019] NSWCA 233
British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283
Burrell v The Queen (2008) 238 CLR 218
Deputy Commissioner of Taxation v Meredith (No 2) [2008] NSWCA 133
Devine Real Estate Concord Pty Ltd v Agha [2018] NSWSC 556
Devine Real Estate Concord Pty Ltd & Ors v Wajih Agha (aka Roger Agha) & Anor [2019] NSWSC 786
DJL v The Central Authority (2000) 201 CLR 226
Johnson v Johnson (2000) 201 CLR 488
Yuill v Spedley Securities Ltd (in liquidation) [1992] NSWCA 285

Category: Procedural rulings
Parties: Devine Real Estate Concord Pty Ltd (first plaintiff)
Devine Real Estate Drummoyne Pty Ltd (second plaintiff)
Steven Devine (third plaintiff)
EMC Just Holdings Pty Ltd (fourth plaintiff)
Wajih Agha (aka Roger Agha) (first defendant)
Lewis Coombe (second defendant)
Representation:
Counsel:
I M Neil SC, M Seck (plaintiffs)
P Doyle Gray, A Djurdjevic (defendants)
Solicitors:
Jemmeson & Fisher Solicitors (plaintiffs)
Summer Lawyers (defendants)

File Number(s): 2018/87652

Judgment

Introduction

By Notice of Motion filed 29 March 2022 the plaintiffs seek leave to reopen the hearing so that the Court may determine the claim pleaded at [99] and [101](1), (3), (4), and (10) of the Statement of Claim filed on 20 March 2018. The Motion further asks that the Court exercise its power under rr 36.16(1) and (3) of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) in its inherent jurisdiction and s 14 of the Civil Procedure Act 2005 (NSW) to vary orders entered on 4 December 2019 that the second defendant, Mr Lewis Coombe, contravened s 182(1) of the Corporations Act 2001 (Cth) (‘Corporations Act’) by engaging in the conduct pleaded at paras 99 and 101(1), (3), (4), and (10) of the Statement of Claim.

procedural background

It is important prior to dealing with this application to understand the history of what has been prolonged and hard fought, and hence drawn out, litigation involving a dispute between business partners and a former employee and serious allegations arising out of what were asserted to be various breaches of contractual and other obligations.
Although the matter ultimately proceeded by way of pleadings, the plaintiffs’ case was initially commenced by way of summons with an affidavit in support when it came before Hallen J…

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 Devine Real Estate v Agha

Details

AGLC: Devine Real Estate v Agha [2022] NSWSC 543
Case: [2022] NSWSC 543
Decision Date: 05 May 2022

CaseChat Overview and Summary

The case of Devine Real Estate v Agha, recently considered by the Supreme Court of New South Wales, involves a dispute concerning the reopening of a judgment following a previous appeal. Devine Real Estate, the plaintiff, sought to reopen the judgment against Agha, the defendant, based on allegations of new evidence and an error in the original judgment. The primary legal issue before the court was whether the application to reopen the judgment complied with the requirements set out in rule 36.16(3) of the Uniform Civil Procedure Rules 2005 (NSW). The court was tasked with determining if the application met the criteria for reopening under the rule and if the proposed new evidence was indeed new and could not have been reasonably discovered earlier.

In assessing the application, the court closely examined the provisions of rule 36.16(3), which specifies the circumstances under which a court may reopen a judgment. The court considered the nature and relevance of the new evidence, the defendant's opportunity to respond to the new evidence, and whether the application was made within a reasonable time. The court also evaluated whether the new evidence could substantially affect the outcome of the case. The court found that the application satisfied the procedural requirements, as it was made within the permissible time frame and the new evidence was relevant and material to the original proceedings.

The court ruled in favour of the plaintiff, granting the application to reopen the judgment. The court held that the application complied with the necessary legal criteria and that the new evidence presented was significant enough to warrant reconsideration of the judgment. The court's decision underscores the importance of adhering to the procedural rules when making applications to reopen judgments, particularly in cases where new evidence is claimed. The final orders of the court will detail the terms under which the judgment is to be reopened and any further steps required in the proceedings.

Orders