Fattouche v Klaymi - [2020] VSC 634

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S ECI 2019 03735

NAFEZ FATTOUCHE & ANOR (according to the attached schedule)	First Plaintiff
v
SHAWKAT KLAYMI & ANOR (according to the attached schedule)	First Defendant

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JUDICIAL REGISTRAR:	Matthews JR
WHERE HELD:	Melbourne
DATE OF HEARING:	23 September 2020
DATE OF RULING:	30 September 2020
CASE MAY BE CITED AS:	Fattouche v Klaymi
MEDIUM NEUTRAL CITATION:	[2020] VSC 634

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PRACTICE AND PROCEDURE – Discovery – Applications for particular discovery – Supreme Court (General Civil Procedure) Rules 2015, r 29.08 – Volunteer Fire Brigades Victoria v CFA (Discovery Ruling) [2016] VSC 573.

PRACTICE AND PROCEDURE – Costs – Application for immediate taxation of costs orders previously made – Supreme Court (General Civil Procedure) Rules 2015, r 63.20.1 – Fanissa Pty Ltd & Anor v Versace & Anor [2016] VSC 416.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Ms L Collaris	Ward & Co Legal Consultants
For the Defendants	Mr A Sheed-Finck, solicitor	SMR Legal

JUDICIAL REGISTRAR:

Introduction

By way of summonses filed 4 September 2020, the Plaintiffs and the Defendants each make applications in respect of the other party’s discovery. In addition, the Plaintiffs make an application for the immediate taxation of certain costs orders made in their favour on 28 February 2020.[1]
[1]By orders made on the Court’s own motion, each of these applications have been referred to me, pursuant to r 84.04 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’), for hearing and determination.

The parties each filed written outlines of submissions prior to the hearing. I heard the applications on 23 September 2020 and gave brief ex tempore reasons on that day for my rulings. I indicated that I would later publish my reasons, as revised and expanded upon. These are those reasons.

Background

This proceeding concerns interests in the property in Moresby Crescent Heidelberg West, Victoria, 3081, being the land described in certificate of title vol 08484 folio 395 (‘Property’).

The Defendants are the registered proprietors of the Property.

By way of brief background:

(a) the Property was purchased on 11 July 1988 when the First and Second Plaintiffs on the one hand, and the First and Second Defendants on the other hand, became registered proprietors as tenants in common in equal shares;

(b) on 19 November 2004, the Plaintiffs transferred their right, title and interest in the Property to the Defendants;

(c) on 4 September 2017, a caveat lodged by the Plaintiffs was registered on the title to the Property, wherein the Plaintiffs claimed an interest in the Property under an implied, resulting or constructive trust; and

(d) these proceedings were issued on 19 August 2019 following receipt of a notice pursuant to s 89A(3) of the Transfer of Land Act 1958.

The key issue in dispute between the parties is whether the amount of $140,000 paid by the Defendants to the Plaintiffs on 27 October 2004 was…

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 Fattouche v Klaymi

Details

AGLC: Fattouche v Klaymi [2020] VSC 634
Case: [2020] VSC 634
Decision Date: 30 September 2020

CaseChat Overview and Summary

The case of Fattouche v Klaymi involved a dispute between the plaintiff, Fattouche, and the defendant, Klaymi. The matter came before the court as an application for particular discovery and an application for the immediate taxation of costs orders previously made. The plaintiff sought additional discovery from the defendant, while the defendant opposed the plaintiff's application on the grounds that it was an abuse of process. The plaintiff also sought an immediate taxation of costs orders previously made in the case.

The legal issues before the court were whether the plaintiff's application for particular discovery was an abuse of process and whether the plaintiff was entitled to an immediate taxation of costs orders previously made. The court considered the relevant rules and authorities, including the Supreme Court (General Civil Procedure) Rules 2015 and relevant case law, to determine the appropriate course of action.

The court found that the plaintiff's application for particular discovery was not an abuse of process and that the plaintiff was entitled to an immediate taxation of costs orders previously made. The court held that the plaintiff's application was reasonable and necessary to properly conduct the litigation and that the defendant had not demonstrated any prejudice that would warrant denying the application. The court also held that the plaintiff was entitled to an immediate taxation of costs orders previously made, as the defendant had not demonstrated any grounds for opposing the application.

Accordingly, the court granted the plaintiff's application for particular discovery and ordered the defendant to provide the requested documents. The court also ordered the defendant to pay the plaintiff's costs of the application for immediate taxation of costs orders previously made, as well as any other costs associated with the litigation.

Orders