El Kateb v Lawindi

[2001] NSWCA 170

NEW SOUTH WALES COURT OF APPEAL

CITATION:     EL KATEB v. LAWINDI [2001]  NSWCA 170

FILE NUMBER(S):
40289/91

HEARING DATE(S): 04/06/2001

JUDGMENT DATE:    04/06/2001

PARTIES:
MAHOMAD SAFWAT EL KATEB (Claimant)
WASFY LAWINDI (Opponent)

JUDGMENT OF:        Powell JA Stein JA    

LOWER COURT JURISDICTION:    Supreme Court

LOWER COURT FILE NUMBER(S):             ED 55026/00

LOWER COURT JUDICIAL OFFICER:        Hunter J

COUNSEL:
Claimant in person
C.J. Bevan (Opponent)

SOLICITORS:
Claimant in person
Turner Freeman (Opponent)

CATCHWORDS:
JUDGMENTS - Amending varying or setting aside - Where fraud - Action to set aside dismissed - Leave to appeal sought

LEGISLATION CITED:

DECISION:
Leave to appeal refused - Summons dismissed

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40289/01
ED 55026/00

POWELL JA
STEIN JA

4 June 2001

EL KATEB v. LAWINDI

JUDGMENT

1. POWELL JA:     The present application is but another chapter in a long running dispute between the Claimant ("Dr El Kateb") and the Opponent ("Mr Lawindi") in respect of an agreement said to have been entered into between Dr El Kateb and Mr Lawindi in about April 1995 for the carrying out of certain building works for Dr El Kateb by Mr Lawindi.

2. It seems clear enough (see El Kateb v Lawindi (1997) 42 NSWLR 396) that, by no later than December 1996. disputes had arisen between Dr El Kateb and Mr Lawindi in respect of the agreement.

3. The dispute appears to have arisen when, so it would seem, Mr Lawindi in reliance upon the provisions of what was said to be clause 25 of the agreement gave notice of dispute and an arbitrator, Mr L Austin ("the Arbitrator") was appointed (see El Kateb v Lawindi (1997) 42 NSWLR 396).

4. Despite a number of attempts made by Dr El Kateb in 1998 to have the Arbitrator removed to terminate the arbitration, it proceeded to hearing and in February 1999 the Arbitrator produced an interim award.  Although the Interim Award is not before us today, my recollection of it from an earlier occasion is that the Arbitrator indicated that he would make an Award in favour of Mr Lawindi in a sum of the order of $42,000 plus interest which was to be calculated.

5. After the Arbitrator had published his interim award, application was made to Rolfe J to have that interim award set aside upon a number of grounds, such grounds including an assertion that Mr. Lawindi had never been a party to the 1995 agreement.  Rolfe J dismissed that application. 

6. Thereafter, on 11 August 1999, the Arbitrator published his Award in a total amount of approximately $67,000.00.  Shortly thereafter there was filed on behalf of Mr Lawindi a Summons in which he sought to enforce the award by the entry of judgment in his favour for the amount of the final award.

7. On 18 August 1999 Dr. El Kateb filed, and served, a Summons seeking leave to appeal from the order made by Rolfe J on 20 July 1999 dismissing his application to set aside the interim award.

8. The Summons filed on behalf of Mr. Lawindi came before Einstein J, who had earlier given directions as to its conduct - with which directions Dr. El Kateb had failed to comply - on 24 September 1999.  On that day, Dr El Kateb who was not present in court, was represented by a Mr I Tremback, solicitor, who on that occasion sought to have the proceedings adjourned.  That application was opposed by Mr Nicholls, who appeared for Mr Lawindi, and, as Mr Tremback, who had first been given an opportunity to take instructions on the matter, was unable to inform Einstein J of any defence to the application, his Honour refused to grant the adjournment which had been sought and ordered that judgment be entered for Mr Lawindi in a sum which, when further interest was added was of the order of $72,000.

9. Although the transcript record of the hearing of the application before Einstein J contains no record of any such inquiry having been made, it is claimed by Dr El Kateb that, when, on the application, Einstein J inquired whether any application had been made on his behalf to set aside the award, Mr Tremback informed his Honour that he was not aware of any such application and that Mr. Nicholls did not advise his Honour of a pending application in the Court of Appeal for leave to appeal from Rolfe J’s refusal to set aside the interim award - Dr. El Kateb asserts that Mr. Nicholls' alleged failure to do so led to the order made by Einstein J having been procured by fraud.

10. The application for leave to appeal from Rolfe J’s decision came before the Court of Appeal on 22 November 1999, on which occasion neither party informed the Court that Einstein J had on 24 September 1999 ordered the entry of judgment in favour of Mr Lawindi.  In the event, the Court granted leave to appeal but limited that grant to the question of whether or not Mr Lawindi was the builder under the relevant agreement and, as such, had standing to refer the matter to arbitration.

11. Thereafter when on 24 February 2000 the appeal was listed for hearing, it became apparent that Einstein J had entered judgment in favour of Mr Lawindi, the Court (Mason P, Handley JA & Fitzgerald JJA) rescinded the grant of leave to appeal and dismissed the appeal.

12. Thereafter, on 24 March 2000, Einstein J dismissed with costs an application which had been made by Dr El Kateb to set aside - upon the basis of the fraud alleged by him - the judgment entered by Einstein J on 24 September 1999.  In his Judgment Einstein J pointed out that, an application to set aside a judgment alleged to have been procured by fraud needed to be made in independent proceedings rather than by an interlocutory application in the original proceedings - a view which is supported by the weight of authority (see Hip Foong Hong v. H. Neotia & Co [1918] AC 888, 894; Jonesco v. Beard [1930] AC 298, 300-1; McDonald v. McDonald (1965) 113 CLR 529, 533; Wentworth v. Rogers (No. 5) (1986) 6 NSWLR 534; Spies v. Commonwealth Bank of Australia (1991) 24 NSWLR 691).

13. An application for leave to appeal from that judgment was dismissed by this Court (Powell, Heydon JJA) on 10 August 2000.

14. An application for special leave to appeal from the order made on 10 August 2000 was filed by Dr. El Kateb in the High Court on 11 August 2000.  As I understand it, the application for leave was listed for hearing in Sydney on Friday last, but its fate is not known to me.

15. The proceedings which have led to this application appear to have been filed a short time after the application for special leave to appeal to the High Court was filed.

16. In the Amended Summons which Dr El Kateb sought to have filed, he sought to have the judgment entered by Einstein J on 24 September 1999 set aside upon two grounds, they being:

    (1) that the judgment had been procured by fraud, the “fraud” being the alleged non-disclosure to Einstein J of the fact that an application for leave to appeal from the orders made by Rolfe J refusing to set aside the interim award had been lodged; and

    (2) in reliance upon the provisions of SCR Pt 40 r 9(2)(b), that the judgment had been entered in his absence, Dr El Kateb asserting that, as Mr Tremback had been retained only for the purpose of applying for an adjournment, he, Dr El Kateb, was to be regarded as not having been in attendance.

17. The proceedings came on for hearing before Hunter J on 13 March this year and continued on 16 and 23 March on which latter day judgment was reserved.

18. It is clear that, on the hearing before his Honour, there were two substantial issues tendered for his determination, they being

    (1) whether Einstein J had made the inquiry to which I have earlier referred; and

    (2) whether, in any event, Mr Lawindi’s legal advisers had knowingly refrained from advising Einstein J of the pendency of the application for leave to appeal to the Court of Appeal.

19. In the event, Hunter J declined to find that Einstein J had made the inquiry alleged and, further, was not disposed to find that if that inquiry had been made Mr Lawindi’s legal advisers deliberately refrained from drawing to the attention of Einstein J the pendency of the application to the Court of Appeal.  That being so, Hunter J held that Dr El Kateb had not made out his case and dismissed the proceedings with costs.

20. The grounds of appeal sought to be raised by Dr El Kateb are as follows:

    (1)His Honour erred in holding that there was no basis upon which the Court should set aside the judgment of Justice Einstein.

    (2)His Honour’s finding that Mr Tremback requested from the Appellant to provide instructions as to a defence could not reasonably be arrived at upon the evidence.

    (3)His Honour should have found that the Respondent’s lawyers had an obligation to inform Justice Einstein of the Court of Appeal proceedings on foot to set aside the Award.

    (4)His Honour failed to deal with the Appellant’s written arguments in support of Order 2 of the Summons, in particular with Part 40 Rule 9(1) and Rule 9(2)(b) of the Supreme Court Rules and with the case of TJM Products Pty Limited v A & P Tyres Pty Limited (1987) 17FCR 390.

    (5)His Honour’s conclusion in paragraph 34 of his judgement is inconsistent with his finding in paragraph 28 of his judgement."

21. It is clear, upon a reading of his judgment, that Hunter J preferred the oral evidence of Mr Nicholls, counsel who had appeared before Einstein J and Mr Cheney, who had instructed Mr Nicholls on that occasion, to the evidence of Mr Tremback, as also is it clear that his Honour regarded his view of the credibility of the witnesses confirmed by the fact that, in the transcript record of the proceedings before Einstein J, there was no record of any such query or answer as was alleged.

22. This being so, it seems to me that, insofar as Dr El Kateb seeks to attack his Honour’s findings of fact, he is faced with principle most recently laid down in the decisions of the High Court in Abalos v. Australian Postal Commission ((1990) 171 CLR 167) and Devries v. Australian National Railways Commission ((1992-1993) 177 CLR 472). It seems to me that Dr. El Kateb has failed to show that he has any ground of appeal having any real prospect of success on this aspect of the matter.

23. So far as Dr El Kateb seeks to base his application on the provisions of the SCR Pt 40 Rule 9, I say no more than that, in my view that rule provides him with no assistance whatsoever.

24. In the circumstances, I would propose that leave to appeal be refused and the summons dismissed with costs.

25. STEIN JA:  I agree.

26. POWELL JA:  That is the order of the Court.

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LAST UPDATED:              08/06/2001