Ibrahim v Ayoubi

[2013] NSWCA 405

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Ibrahim v Ayoubi [2013] NSWCA 405

Hearing dates:

22 November 2013

Decision date:

05 December 2013

Before:

Emmett JA, Sackville AJA

Decision:

The application for an extension of time in which to file the application for leave to appeal is refused.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PRACTICE AND PROCEDURE - orders made in defendant's absence - primary Judge refuses to set aside orders - application for an extension of time to file an application for leave to appeal - sufficiency of explanation for defendant's absence - no arguable defence shown - no question of principle

Legislation Cited:

Civil Procedure Act 2005, s 56
Supreme Court Act 1970, s 101(2)

Uniform Civil Procedure Rules 2005, rr 29.7, 51.10

Cases Cited:

Magnate Projects Pty Ltd v Youma Constructions (No 2) Pty Ltd [2005] NSWCA 331
Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR (NSW) 239

Category:

Principal judgment

Parties:

Michael Ibrahim (First Applicant)
Fatat Faleh (Second Applicant)
Jihad Ayoubi (First Respondent)
Sanna Ayoubi (Second Respondent)

Representation:

Counsel:

First Applicant in person (Applicants)

Second Respondent in person (Respondents)

File Number(s):

2013/272605

 Decision under appeal 

Jurisdiction:

9111

Citation:

[2013] NSWSC 204

Date of Decision:

2013-02-28 00:00:00

Before:

White J

File Number(s):

2012/357843

Judgment OF THE COURT

1. The applicants seek leave to appeal from a judgment of a Judge of the Equity Division of this Court (White J): Ayoubi v Faleh [2013] NSWSC 204. In that judgment, his Honour refused to set aside orders made by Gzell J on 15 February 2013, entering judgment for the first respondent ("Mr Ayoubi") against the first applicant ("Mr Abraham"). (The first applicant is referred to in court documentation as Mr Ibrahim, but he informed the Court that his name is Mr Abraham.) Leave to appeal is required because White J's judgment was interlocutory and, in any event, the amount in issue is less than $100,000: Supreme Court Act 1970, s 101(2)(e), (r).

1. The ex tempore judgment of White J was given on 28 February 2013. The summons seeking leave to appeal was not filed until 9 September 2013, over five months out of time: see Uniform Civil Procedure Rules 2005 ("UCPR"), r 51.10(1)(b). Mr Abraham's affidavit in support of the summons merely says that he was not aware that there were time limits within which he had to lodge an appeal.

Proceedings in the Supreme Court

1. The factual background of the case, as it appears from the judgment of White J, may be shortly stated. On 16 November 2012, the respondents, Mr Ayoubi…