G and G Mikhael Pty Ltd v Chalak - [2022] NSWSC 191

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: G & G Mikhael Pty Ltd v Chalak [2022] NSWSC 191
Hearing dates: 18 February 2022
Date of orders: 18 February 2022
Decision date: 18 February 2022
Jurisdiction: Common Law
Before: Dhanji J
Decision:
(1)   I give judgment for the plaintiff for possession of the land comprised in folio identifier 1/SPXXXXX being the land located at and known as Townhouse 1, X XXXXX X XXXXX XXX, Chipping Norton, New South Wales, thereafter "the land".
(2)   I grant the plaintiff leave to issue a writ of possession with respect to the land.
(3)   The writ of possession referred to in Order 2 is stayed for a period of eight weeks.
(4)   I give judgment for the plaintiff against the defendant in an amount equal to the principal outstanding on the loan together with interest on that amount calculated as simple interest at the rate of 7% to date and thereafter interest to be calculated in accordance with the rules.
(5)   The defendant has to pay the plaintiff's costs as agreed or assessed.
(6)   I direct the parties provide to my Associate by close of business tomorrow the terms of the order for judgment in order to give effect to the above reasons.

Catchwords:
LAND LAW – possession of land – notice of motion - summary judgment sought in relation to statement of claim - summary dismissal sought with respect to cross-claim – orders sought made – costs

Legislation Cited:
Civil Procedure Act2005 (NSW)
Consumer Credit (New South Wales) Code
Real Property Act 1900 (NSW)
Uniform Civil Procedure Rules2005 (NSW)

Cases Cited:
Bendigo and Adelaide Bank Ltd v Tombs [2010] NSWSC 1427
Cosmos E-C Commerce Pty Ltd v Bidwell & Associates Pty Ltd [2005] NSWCA 81
Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Suncorp-Metway Ltd v Nam Property Holdings Pty Ltd [2010] NSWSC 1078
Webster v Lampard (1993) 177 CLR 598; [1993] HCA 57

Category: Procedural rulings
Parties: G & G Mikhael Pty Ltd (Plaintiff)
Safwan Nizar Chalak (Defendant)
Representation:
Counsel:
J Young with Dr A Lim (Plaintiff)
T Rollo (Counsel)
Solicitors:
Gavel & Page Lawyers (Plaintiff)
Auslex Law Group (Defendant)

File Number(s): 2021/94652
Publication restriction: Nil

EX TEMPORE Judgment (REVISED)

HIS HONOUR: Before the Court is a Notice of Motion filed 30 November 2021 whereby the plaintiff, G & G Mikhael Pty Ltd, seeks summary judgment in relation to its Statement of Claim and summary dismissal with respect to a Cross-Claim filed by the defendant, Safwan Chalak.
The substantive proceedings arise on the basis of an Amended Statement of Claim filed by the plaintiff on 3 May 2021. That has been responded to by way of an Amended Defence filed on 22 November 2021. The defendant has additionally, on 20 September 2021, filed a Cross-Claim.
The substantive proceedings seek orders for possession of land…

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.

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Details

Case: [2022] NSWSC 191
Decision Date: 18 February 2022

CaseChat Overview and Summary

G and G Mikhael Pty Ltd sued Mr Chalak for possession of certain property, and Mr Chalak cross-claimed for relief in relation to that property. The matter came before the court on a notice of motion for summary judgment and summary dismissal. The court had to decide whether the plaintiffs were entitled to judgment as a matter of law, whether the plaintiffs' claim should be summarily dismissed, and whether the defendants' cross-claim should be summarily dismissed.

The court noted that the plaintiffs had served a statement of claim, and the defendants had filed a defence and cross-claim. The plaintiffs sought summary judgment as to liability on the basis that the defendants had failed to make any defence to their claim for possession. The court found that the defendants had made a defence, albeit in a limited way. The court further found that the defendants' cross-claim did not provide a basis for relief. The court held that the plaintiffs were not entitled to judgment as a matter of law, and that the plaintiffs' claim for summary judgment should be dismissed with costs. The court also held that the defendants' cross-claim should be summarily dismissed with costs.

The court dismissed the plaintiffs' claim for summary judgment and the defendants' cross-claim. The court ordered that the plaintiffs pay the defendants' costs of the motion.

Orders