Fadi Adeeb v Christopher Adeeb Alali - [2013] NSWSC 312

Supreme Court

New South Wales

Medium Neutral Citation: Fadi Adeeb v Christopher Adeeb Alali [2013] NSWSC 312
Hearing dates: 04/04/2013
Decision date: 04 April 2013
Jurisdiction: Equity Division
Before: McDougall J
Decision:
Plaintiff to pay second defendant's cost on the indemnity basis - papers to be referred to the Department of Public Prosecutions.

Catchwords: COSTS - indemnity costs - uncontroverted evidence that affidavit in support of summons was false in material respects - abuse of process.
Category: Procedural and other rulings
Parties: Fadi Adeeb (Plaintiff)
Christopher Adeeb Alali (First Defendant)
Leila Alali (Second Defendant)
Representation: Counsel:
T P Orlizki (Solicitor) (Plaintiff)
PT Newton (First Defendant)
N Wahhab (Solicitor) (Second Defendant)
Solicitors:
Kent Attorneys (Plaintiff)
John Spence and Associates (First Defendant)
York Family Law Pty Ltd (Second Defendant)

File Number(s): 2013/93999

Judgment (ex tempore - revised 5 april 2013)

HIS HONOUR: The plaintiff commenced these proceedings seeking, among other things, a declaration that a loan agreement said to have been made between him and the first defendant was valid, and a declaration as to the indebtedness of both defendants to him. The plaintiff sought also an extension of a caveat.

In support of his application, the plaintiff swore an affidavit. That affidavit said at para 8 that there was a loan agreement made on 26 June 2009. A copy was annexed as annexure H. In paras 9 and 10 the affidavit said the plaintiff made two statutory declarations, respectively annexures J and K, on 26 June 2009.

The caveat, which was ill drafted, claimed a "financial interest" in the land by virtue of a "financial agreement", the date of which was unspecified, but the parties to which were said to have been the parties to the present proceedings. It stated further that the plaintiff had loaned an amount of $360,000 towards the renovations and improvements to the land, reflecting in the alleged financial agreement.

It is common ground today that the plaintiff should have leave to discontinue. As between the plaintiff and the first defendant, that leave is to be granted on the basis that there be no order as to costs.

However, the second defendant seeks her costs, and on the indemnity basis. The plaintiff is prepared to pay the costs but not, it appears, on the indemnity basis.

In support of the application for indemnity costs, the second defendant relies on her affidavit sworn 3 April 2013. That affidavit was read without objection and there was no evidence offered in response. It made two substantial points.

The first point made was that the loan agreement said to have been made in June 2009 (26 June 2009 according to the plaintiff's affidavit) could not have been made then. The second defendant referred to the fact that an amortising schedule attached to the agreement had a copyright notation claiming copyright "2002-2013". The claim was made by someone known as lawdepot.com.

Secondly, and as to the statutory declarations, the defendant notes that the durat clause - the form of attestation - is…

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 Fadi Adeeb v Christopher Adeeb Alali

Details

AGLC: Fadi Adeeb v Christopher Adeeb Alali [2013] NSWSC 312
Case: [2013] NSWSC 312
Decision Date: 04 April 2013

CaseChat Overview and Summary

The case of Fadi Adeeb versus Christopher Adeeb Alali was brought before the court, with the central issue being the recovery of costs associated with an indemnity order. The dispute arose from an affidavit supporting a summons that was later found to be materially false. The court was tasked with determining whether the defendant, who had made an indemnity costs order against the plaintiff, could be held liable for those costs due to the plaintiff's demonstration that the affidavit was false and had led to an abuse of process. The court's decision hinged on the principles governing indemnity costs and the circumstances that may justify setting aside such orders.

The court considered whether the uncontroverted evidence of the plaintiff's affidavit being false in material respects warranted a review of the indemnity costs order. It was established that the affidavit contained significant inaccuracies that were not contested, leading to the conclusion that the defendant had relied on misleading information. The court explored the principles underpinning indemnity costs, including the necessity for the party seeking such an order to demonstrate a good faith belief in the merits of their case. The court also examined the concept of abuse of process and the circumstances under which an indemnity costs order may be set aside. The plaintiff's demonstration of the affidavit's falsity and the resultant abuse of process was central to the court's deliberations.

Upon reviewing the evidence and the applicable legal principles, the court found that the defendant's reliance on a false affidavit constituted an abuse of process. The court determined that the indemnity costs order should be set aside, and the plaintiff was entitled to recover the costs incurred as a result of the defendant's actions. The court's reasoning was based on the clear uncontroverted evidence of the false affidavit and the resultant abuse of the court process. The court emphasised that the defendant's actions warranted the setting aside of the indemnity costs order to prevent unjust enrichment and to uphold the integrity of the legal process. The court's decision reflected a balanced approach to the principles of indemnity costs and the consequences of abusing court processes.

Orders