Gemi Nominees Pty Ltd v Chamoun - [2024] NSWSC 926

Supreme Court

New South Wales

Medium Neutral Citation: Gemi Nominees Pty Ltd v Chamoun [2024] NSWSC 926
Hearing dates: 24, 27 May 2024 and 23 July 2024
Date of orders: 31 July 2024
Decision date: 31 July 2024
Jurisdiction: Common Law
Before: Faulkner J
Decision:
(1)   The First Defendant’s Notice of Motion filed on 26 June 2024 be dismissed.
(2)   Judgment for the Plaintiff for possession of the land described in folio identifier 2/865637 being the land situated at and known as 72-78 Parramatta Road, Croydon NSW 2132 and folio identifier Auto C consol 12585-132 being the land situated at and known as 31 Phillip Street, Cabarita NSW 2137.
(3)   The Cross-Claim filed on 4 December 2023 be dismissed.
(4)   The Defendants pay the Plaintiff’s costs of the proceedings including the Cross-Claim and the Notice of Motion filed on 26 June 2024.

Catchwords:
CIVIL PROCEDURE — conduct of proceedings — application for adjournment — evidence does not prove that the applicants are unable to attend Court and participate effectively in the proceedings — adjournment refused
PRACTICE AND PROCEDURE – application to reopen – no basis for reopening
REAL PROPERTY — mortgages — possession of land — judgment sought for possession — order for possession admitted subject to claimed set off.

Legislation Cited:
Civil Procedure Act2005 (NSW), ss 56(2) and (3), 57(1), 66 and 98
Contracts Review Act 1980 (NSW)
Evidence Act 1995 (NSW), ss 66A and 75
Real Property Act 1900 (NSW), s 60
Uniform Civil Procedure Rules 2005 (NSW), rr 7.29(2), 14.15(d)

Cases Cited:
Bobalas v Waverley Council [2016] NSWCA 139
Commonwealth Bank of Australia v MLD Financial Services Asset Management Pty Ltd [2015] NSWSC 1476
Magjarraj v Asteron Life Limited [2009] NSWSC 1433
Ohn v Walton (1995) 36 NSWLR 77

Category: Principal judgment
Parties: Gemi Nominees Pty Ltd (Plaintiff)
Caroline Chamoun (First Defendant)
Jack Chamoun (Second Defendant)
Representation:
Counsel:
H W Somerville, M McGirr (Plaintiff)
F Maghami, C Honnery (First Defendant) on 24 and 27 May 2024
No Appearance (Second Defendant)
Solicitors:
Summer Lawyers (Plaintiff)
Longton Legal (First Defendant) on 24 and 27 May 2024
Zed Law (First Defendant) on 23 July 2024
No Appearance (Second Defendant)

File Number(s): 2022/280017

JUDGMENT

Introduction

These proceedings are brought by Gemi Nominees Pty Ltd (the Plaintiff) against Caroline Chamoun (the First Defendant) and Jack Chamoun (the Second Defendant). Ms Chamoun and Mr Chamoun have been married for 25 years.
On 29 March 2021, the Plaintiff entered into an agreement with the Defendants and a company associated with them called Croydon Automotive Repairs Pty Ltd (the Borrower). I will refer to the agreement as the Facility Agreement. Under the Facility Agreement the Plaintiff lent money to the Borrower. The Facility Agreement also contained a guarantee and indemnity from each of the Defendants for the repayment to the Plaintiff of the Secured Money and the performance of, and compliance by, the Borrower with all its obligations (the Guarantee).
To secure their obligations under the Guarantee, the Defendants granted to the Plaintiff a…

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 Gemi Nominees Pty Ltd v Chamoun

Details

AGLC: Gemi Nominees Pty Ltd v Chamoun [2024] NSWSC 926
Case: [2024] NSWSC 926
Decision Date: 31 July 2024

CaseChat Overview and Summary

Gemi Nominees Pty Ltd applied to adjourn and reopen proceedings against Chamoun. The applicants sought an adjournment of an application for possession of land and an order for the reopening of a judgment for possession. The case was before the Supreme Court of Queensland. The applicants argued that they were unable to attend court due to illness, and they sought a reopening of the judgment due to new evidence. The respondents argued that the applicants' evidence did not substantiate their inability to attend court and that there was no basis for reopening the judgment.

The court considered whether the applicants' evidence was sufficient to warrant an adjournment and whether there was a basis for reopening the judgment. The court found that the applicants had not provided sufficient evidence to substantiate their claim of inability to attend court. The court also found that there was no basis for reopening the judgment as the applicants had not demonstrated any new evidence that would materially affect the outcome of the case.

The court refused the application for adjournment and dismissed the application to reopen the judgment. The court found that the applicants had not provided sufficient evidence to warrant an adjournment or a reopening of the judgment. The court emphasised the importance of providing credible and reliable evidence to support such applications.

The court did not make any orders in relation to the adjournment or reopening applications. The court ordered that the application for possession of land would proceed as scheduled, subject to the claimed set off.

Orders