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:
Solicitors:
I M Neil SC, M Seck (plaintiffs)
P Doyle Gray, A Djurdjevic (defendants)
Jemmeson & Fisher Solicitors (plaintiffs)
Summer Lawyers (defendants)
File Number(s): 2018/87652
Judgment
Introduction
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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
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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.
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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…
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- AGLC
- Devine Real Estate v Agha [2022] NSWSC 543
- Case
- [2022] NSWSC 543
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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