Hanania v Parramatta Wholesale Cars Pty Ltd (No 3)

[2020] NSWSC 1952

Supreme Court

New South Wales

Medium Neutral Citation:	Hanania v Parramatta Wholesale Cars Pty Ltd (No 3) [2020] NSWSC 1952
Hearing dates:	19 May 2020
Date of orders:	19 May 2020
Decision date:	19 May 2020
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	See paragraph 41
Catchwords:	CIVIL PROCEDURE – hearings – adjournment – relevant factors – proposed adjournment to enable the hearing to be conducted in person
Legislation Cited:	Nil
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	George Shukri Hanania Raymond Hanania (Plaintiffs) Issa Hanania (Defendant) Elias Hanania (Fifth Cross Defendant)
Representation:	Counsel: A Duc (Plaintiff) C.D. Wood SC (Defendant) B Balasubramaniam (Fifth Cross Defendant) Solicitors: Attia Lawyers and Consultants (Plaintiffs) Williams the Law Firm (First and Second Defendants)
File Number(s):	2018/16534
Publication restriction:	Nil

EX TEMPORE Judgment

1. I am considering an application for an adjournment of proceedings which are part-heard before me and have been listed for further hearing for five days commencing next Monday the 24th of May.

2. The proceedings were commenced in 2018 in the Possession List and was substantially part-heard by me in September last year. It was likely that the hearing would not have finished in the time allocated last year, however, the principal reason for the adjournment was the joinder of another party, at what might be described as the very heel of the hunt.

3. I need to say a little about the nature of the proceedings to explain that, and I set these matters out in my reasons for granting the adjournment last year.

4. The proceedings commenced in the Possession List and the plaintiffs who are Mr George Hanania, Mr Raymond Hanania, and Mr Raymond Hanania's wife, Ghada Hanania. They are the registered proprietors of land at Granville on which a used car business is conducted by Parramatta Wholesale Cars Pty Limited. The company is the first defendant and Mr Issa Hanania is the second defendant. The party who was joined late more or less of his own motion is another brother, Mr Elias Hanania. As can be readily deduced, quite apart from its commercial aspects, the litigation has a distinct flavour of a family dispute.

5. The business of Parramatta Wholesale Cars in one form or another was commenced about 30 years ago as a firm styled GR Quality Wholesale Cars. Without going into all the details, in very broad terms various members of the Hanania family have been actively involved in the business at various times.

6. Initially it was conducted as a partnership between George Hanania, the father, and Raymond Hanania, and at different times persons left the partnership and persons re-entered the partnership and it is currently conducted as a proprietary company.

7. George, Raymond and Raymond's wife no longer are involved in the business but remain registered proprietors of the land.

8. There was an informal leasehold agreement entered into at some stage between the plaintiffs and the defendants but they fell into dispute and that dispute became the background to the plaintiffs, as registered proprietors, seeking to eject the defendants and repossess the land.

9. I might say that there has been another complication which is not really one of the issues in the case where another family member has taken up possession of part of the land and is conducting another car sale business from those premises, which is a further source of aggravation to at least Mr Issa Hanania.

10. The essential dispute then is a competition between the plaintiffs seeking possession and Mr Issa Hanania's case where he seeks the equitable remedy of the declaration of a constructive trust in respect of an interest in the land, which he says is partnership property, and that he says he was a member of the original partnership admitted by his father and as such became entitled to an interest in the land.

11. All of this case has unfolded, as I have said, over the space of 30 years or thereabouts and the evidence certainly covers events over that long period of time.

12. The new party is Mr Elias Hanania. Mr Elias Hanania as I said is another brother. He was also at one time a partner in the business.

13. The evidence before me last year was that Elias had been bought out of the business in the early 1990s. That seemed to be about the only common ground, may I say with respect, between the then parties.

14. However after the completion of the plaintiffs' evidence and just before Mr Issa Hanania was about to give evidence, Mr Elias Hanania showed up in court asserting an interest in the land. He disputes the contention that he was ever bought out of the partnership. This is all in broad terms. As I have said, I gave reason for adjourning the case upon his appearance on the last occasion. I will not rehearse those reasons now.

15. A number of things have happened since September. Although I have sought to closely case manage the case, and made directions for the filing of further evidence to bring the proceedings up-to-date, in good time for the resumption of the hearing next week, problems have arisen.

16. For instance, although Mr Elias Hanania is represented again, at one stage, I infer because he had difficulty paying fees, but I am unsure about that, he was unrepresented and therefore unable to comply with the timetable. Various further directions had to be made to attempt to set that right.

17. It was envisaged that the plaintiffs would return to Jordan during the adjournment, where they generally reside, although they are all Australian citizens, being dual citizens both of the Commonwealth of Australia and the Hashemite Kingdom of Jordan.

18. However, the solicitor who had been acting for them, I am not seized of all of the facts but I, again infer from what I have been told, absconded, with the Law Society hot on his heels. A manager was appointed to his practice and it was found that amongst the various irregularities in his practice, the file in this matter was missing. Accordingly, the new solicitor Mr Elias Attia who accepted the retainer around about the end of February or the beginning of March, has had to beg and borrow sufficient information from the other parties to recreate a file where there was none.

19. His difficulties include the fact that although he has had discussions with his client on the Zoom program by email and over the telephone, he says that these means of communication have not been without difficulty. He has never met the clients face to face and indeed, that has been a difficulty in terms of him complying with the amended timetable requiring his clients to respond to the material now filed, after the amended timetable for Mr Elias Hanania benefit. Then of course there has been the intervention of the coronavirus and COVID-19 pandemic with a large part of the world, including Australia and Jordan, going into lockdown.

20. Because of non-compliance with the timetable, the matter came before me about two weeks ago for a final directions hearing to ensure readiness to proceed. At that time Mr Duc of counsel, who appears for the plaintiffs (I interpolate the plaintiffs have the considerable advantage of at least Mr Duc's continuity in the case, him having appeared for them at the hearing in September) raised anticipated difficulties about the matter proceeding but I indicated that I would require any adjournment application to proceed on notice of motion supported by affidavit. That was attended to, and the matter came before me last Friday. The principal ground of adjournment then was the strong desire of the plaintiffs to appear in person for the purpose of the continuation of the hearing because of among other things the importance of this litigation to all the members of the Hanania family who are involved in the proceedings. I indicated a few provisional views, principal amongst which was the consideration that given the present restrictions on court operations because of the COVID-19 pandemic proceedings are in any event being conducted remotely. The directions hearing and the first hearing of the application for adjournment were both conducted remotely by AVL connection.

21. And I indicated for a number of reasons why I wasn't prepared at that stage to adjourn the case without first attempting, as it were, a trial run of the technology to see whether there could be a satisfactory connection with all of the parties, including those resident in Jordan.

22. A very informal trial run at my direction was carried out by my tipstaff with counsel, and some of the parties yesterday afternoon from my chambers using the MS Teams program, which I am using this afternoon. The main purpose of that informal trial was to make sure connections could be made so that the matter could be heard this afternoon with the connection of all interested parties. I interpolate that I have just had two interruptions in the last two minutes of the connection between the Court and the various parties located around Sydney and in Jordan.

23. I was concerned that had the plaintiffs made arrangements, and been able to effect them, to travel to Australia in anticipation of the resumption of the hearing, the reality of the situation would have been that they would have been appearing by AVL in any event. Given the social distancing requirements still in force in New South Wales it has been the Court's experience that very frequently lawyers and clients engaged in litigation are not present at the one time in the same space. Difficulties always arise about obtaining instant instructions when that becomes necessary. For that reason, I was interested in seeing whether the Court could conduct the hearing remotely, notwithstanding the location of the plaintiffs overseas. I will say that there is a time difference. I am told that it is about seven hours but, I made it clear to the parties that I would be prepared to sit out of hours to enable the plaintiffs to appear at hours which would not be too onerous for them.

24. Mr Duc however presses the adjournment application notwithstanding that the operation of the technology has been more or less satisfactory, although this afternoon's experience has not been perfect. He does, however, through a new affidavit from Mr Attia indicate that despite efforts by the plaintiffs in Jordan to find a properly accredited interpreter who could fluently interpret the English language into the Arabic language and the Arabic language into the English language contemporaneously with the progress of the proceedings, they have been unsuccessful.

25. Now, I will say about that, that certainly Mr Raymond Hanania is, with respect to him, very proficient in English although I acknowledge it is not his first language and, often in court, English is spoken at a very formal level which may be unfamiliar to people whose first language it is not. But Mr George Hanania, although he spoke English, was uncertain about some particular matters, I thought. Everyone had the benefit of an interpreter when the matter was last before me, even if only on standby, to help when necessary.

26. Now I appreciate that remote hearings are somewhat more difficult, although we are speaking of an audio/visual hearing, because the visual cues which are so important in ordinary communication are not as readily detectible in two dimensions as they are in the real time and space of personal appearance in the courtroom.

27. In considering this application I, of course, proceed from the fundamental proposition that as a matter of natural justice every litigant to proceedings in this Court is entitled to be present during the hearing. However, I must say that what presence during the hearing means in these extraordinary times may be different from what it means in normal times and legislation has been passed to make it quite clear that the Court has a wide discretion to order proceedings be conducted remotely by audio/visual link and indeed, if necessary, by telephone. I think one has to proceed on the basis that presence at the proceedings in the current situation includes presence by audio/visual link. And so that matter is a matter which I must, if it stood on its own, have reservations about, given that everyone is in the same boat wherever located when it comes to court appearances.

28. However, I also take account of the consideration that this matter has been set down for further hearing since late September last year. That is to say, for eight months, and that hearing dates are precious. In particular during the current crisis when the Court's business is under pressure, it is important that hearing dates be preserved if they reasonably can. Good government in New South Wales depends in part upon the courts being able to function in as normal a manner as circumstances permit, notwithstanding the public health crisis. If the matter goes over, the earliest dates that can be allocated I am informed are in late October, more than 12 months after the case commenced. Of course an adjournment now and an allocation of dates then still means other work would have to be displaced to accommodate this case.

29. I am also conscious of the fact that Mr Issa Hanania conducts his business from the disputed property and that whilst this uncertainty of outcome, which must necessarily be visited upon all litigations, hangs over his head, it adds strain and stress and probably impedes the efficient operation of his business. Although of course currently with the crisis all businesses are experiencing strain and stress and difficult times.

30. However, the point of that observation is that the prejudice which will flow from matters being adjourned cannot simply be measured in terms of judicial efficiency or even in terms of wasted costs, a matter to which I will return, but also upon the stress that participants in the litigious process naturally feel particularly because of the uncertainty of outcome of court cases, which is an unavoidable consequence of engaging in litigation.

31. Mr Wood of Senior Counsel who appears for the defendants makes the pertinent submission that Australian borders were only closed on the 20th of March and given that this case had been set down for some time the plaintiffs have had ample opportunity to attend in anticipation of the hearing. That submission has to be considered in the light of the fact that there may have been some uncertainty about the matter proceeding given the disappearance of their solicitor and the uncertainty about Mr Elias Hanania's representation, as well.

32. The evidence before me indicates that, as may be common knowledge in any event that, for instance, Emirate Airlines have recommenced flying to Sydney from various ports, including from Dubai in the Middle East. Mr Attia’s affidavit also demonstrates that Royal Jordanian Airlines flies from Oman to Dubai and that the plaintiffs can make a connection with an Emirates flight to Sydney.

33. As I have said, they are all Australian citizens, accordingly, the embargo on entry to this country does not apply to them, subject to them submitting to the current 14 days quarantine.

34. The court hopes to resume limited live hearings where persons are permitted to attend in court from the 1st of June, at the discretion of the Chief Justice, and it may be that after that date this case is a case where that personal attendance of the parties would be permitted, but I cannot guarantee it. It may be even after that time, that counsel may be permitted to appear in person, but the parties may have to appear remotely. As I have said, those questions ultimately will depend upon the allocation of available courtrooms in which social distancing restrictions can be applied to cases by the Chief Justice.

35. Finally, Mr Duc has indicated to me that he has instructions to submit to an order for costs thrown away by the defendants if the matter is adjourned. I know that from the submissions of Mr Wood and the material that has been filed including the affidavit of Mr Issa Hanania that there have been defaults in the past and there have been costs orders in the past which in the usual way as yet remain unsatisfied by force of the rules of court. However, given the lateness of the application, and the amount of preparation involved for all parties to come back up to speed in relation to the details of the case, although not decisive, that is an important consideration and I note that the plaintiffs do have property within the jurisdiction, even if they are absent. I make that observation for the purpose of pointing out that there is every prospect that the costs order can be made good.

36. I have not found this an easy case to decide given the discretionary considerations are relatively evenly poised. In the end, I have decided that I am persuaded on the balance of probabilities that the interests of justice and the interest of the administration of justice require an adjournment to enable the plaintiffs to appear in person in New South Wales for the resumption of the hearing of the case given that may soon be possible.

37. I have had regard in particular to the inherent difficulties in remote hearings, the consideration that Mr Issa Hanania and Mr Elias Hanania and probably each of the plaintiffs, certainly George and Raymond, may have to give evidence again in this case and it may be important, given the imminent resumption of live hearings that I have the advantage of hearing and seeing them in court.

38. I also think it significant that they have had to change solicitor in disadvantageous circumstances recently, and, the difficulties of obtaining suitable interpreting services for the purpose of the case in Jordan. In Australia, where we have a very multicultural society, we have excellent interpreting services in many languages where accredited interpreters, independent of the parties, assist the Court in interpreting the proceedings on a daily basis. I am not so sure that - with no disrespect - the Courts of Jordan have need of such services as frequently as they are required here in Sydney.

39. In all of the circumstances, for the reasons I have explained, I propose to accede to the application for an adjournment.

40. I should add to the reasons that I have given, although not a matter of any great moment, but not completely insignificant, that Mr Elias Hanania does not oppose the adjournment.

41. For those reasons, my order is that:

1. The further hearing of the proceedings which was to commence next Monday is adjourned.

2. Fix the matter for further hearing with an estimate of five days commencing on Monday, 26 October 2020.

3. The plaintiff to file the outstanding evidence in reply or in response to the evidence of Mr Elias Hanania by 5 June 2020.

4. List for directions to check readiness to proceed at 9.30am on 12 October 2020.

5. The plaintiffs to pay the costs thrown away by reason of the adjournment.

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Decision last updated: 22 June 2022