Hamoui v Hamaoui

[2021] NSWDC 162

District Court

New South Wales

Medium Neutral Citation:

Hamoui v Hamaoui [2021] NSWDC 162

Hearing dates:

12 February 2021

Date of orders:

12 February 2021

Decision date:

12 February 2021

Jurisdiction:

Civil

Before:

Wilson SC DCJ

Decision:

At [40]

Catchwords:

CIVIL – procedural ruling – application by plaintiff’s solicitor for leave to cease acting – application refused

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 56

Uniform Civil Procedure Rules r 7.29

Cases Cited:

Chaouk v Oh [2019] NSWDC 130

Investec Bank Australia Limited v Peter Kenneth Mann [2012] VSC 81

Lezaja v Hannover Life Re of Australasia Ltd (No 2) [2016] NSWSC 167

SM Project Developments Pty Ltd (in liquidation) [2017] NSWSC 1010

Super 1000 Pty Ltd v Pacific General Securities Ltd [2007] NSWSC 171

Texts Cited:

None

Category:

Procedural rulings

Parties:

Mohamad Hamoui (Plaintiff)
Dina Hamaoui (1st Defendant)
AAI Limited t/as AAMI (2nd Defendant)

Representation:

Counsel:
Mr Jobson (Plaintiff)
Mr Fitzsimmons SC (2nd Defendant)

Solicitors:
Mr Spinak (Plaintiff)
Ms McCullum (2nd Defendant)

File Number(s):

2018/120746

Publication restriction:

None

Judgment

1. By way of notice of motion, dated 10 February 2021, the solicitor for the plaintiff seeks to withdraw from the proceedings and leave to file and serve a Notice of Ceasing to Act. These reasons are provided in the matter of Mohamad Hamoui, 2018/00120746, however, the same motion has been filed in the related proceedings of Bilal Baradeaji. The reasons I provide and the orders I make apply in that matter as well.

2. In support of the application, the plaintiff relies upon an affidavit of Stephen Spinak, of 10 February 21, over which privilege has been claimed, and not disputed by senior counsel for the insurer. I have read the affidavits and have an understanding of the solicitor’s position. I have also had regard to exhibit B, being a series of email exchanges commencing May 2020. That is the evidence upon with the plaintiff’s solicitor relies to seek leave to cease acting for his clients.

3. Mr Jobson of counsel has indicated from the bar table that, in conference, advice has being provided to the plaintiffs as to their prospects of success, and that that advice has not been followed by the solicitors, with the consequence that the proceedings are to continue.

4. It may be inferred, if it was not sufficiently expressly stated, that the advice given by the solicitor for the plaintiff and Mr Jobson was to the effect that the plaintiff’s prospects of success were poor.

5. The plaintiff’s solicitor and Mr Jobson are in a difficult position. However, as is apparent from the affidavit of Madeleine McCallum of 11 February 21 (Exhibit 1) and the affidavit prepared by the senior counsel for the insurer (MFI 1) the position in which the solicitor is in is of his own making.

6. On 24 October 2017, the solicitor received from lawyers acting for the insurer a s 81 notice, denying liability in respect of the subject motor vehicle accident, said to have occurred on 17 April 2016. In order to succeed…