Idik v Huseyin - [2012] NSWSC 279

Supreme Court

New South Wales

Case Title: Idik v Huseyin

Medium Neutral Citation: [2012] NSWSC 279

Hearing Date(s): 21 March 2012

Decision Date: 02 April 2012

Jurisdiction: Common Law

Before:
Grove AJ

Decision:
Motion dismissed with costs

Catchwords:

Legislation Cited:
Contracts Review Act 1980
Real Property Act

Cases Cited:
GE Personal Finance Pty Ltd v Liddy [2008] ACTSC 126
Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230
Permanent Trustee Co Ltd v Frazis [1999] NSWSC 319
Perpetual Trustees Victoria Ltd v Cipri [2008] NSWSC 1128
PT Ltd v Maradona Pty Ltd (1992) 25 NSWLR 643
Small v Tomassetti [2001] NSWSC 1112

Texts Cited:

Category: Principal judgment

Parties:
Zekeriya Idik - Plaintiff
Ayshen Huseyin - First Defendant
Layka Lambali - Second Defendant

Representation

- Counsel:
A Ahmad - Plaintiff
K Cooper (Solicitor) - First Defendant

- Solicitors:
AI Legal - Plaintiff
Bransgroves Lawyers - First Defendant

File number(s):
2010/268313

Decision Under Appeal

- Court / Tribunal:

- Before:

- Date of Decision:

- Citation:

- Court File Number(s)

Publication Restriction:

JUDGMENT

HIS HONOUR: This is an application pursuant to UCPR 49.19 seeking review of a decision by the Registrar on 22 February 2012 by which he set aside a default judgment for possession of land and let the defendant in to defend.

There was not available for the hearing any transcript of the proceedings before the Registrar nor of his reasons for decision. There are some handwritten notes in the court file. As the application is not an appeal in any strict sense and there is a broad discretion as to the procedure to be adopted, it is recorded that the following material was treated as an evidential basis for the application:

a) The pleadings, including the defence filed pursuant to the Registrar's order,

b) Affidavits of the first defendant (Ayshen Huseyin) of 28 October 2011 and 29 November 2011 with respective annexures,

c) Affidavit of Ilkay Salih Yusuf of 29 November 2011,

d) Mortgage and loan agreement dated 3 July 2009

The second defendant (Layka Lambali) was the sister of the first defendant. She is now deceased.

In September 2008 Ms Lambali presented a form of Power of Attorney purportedly signed by the first defendant to Mr Yusuf who was a Justice of the Peace. He witnessed the signature of the first defendant as he claimed that he recognised it as hers. He neither saw nor spoke to Ms Huseyin who was at the time in Cyprus. According to movement records of the Department of Immigration, she departed Australia on 9 July 2006 and re-entered on 13 February 2010.

The Power of Attorney was registered on 12 September 2008.

Ms Huseyin is the registered proprietor of land known as Unit 29 195 Prospect Highway Seven Hills.

There is some discrepancy of date between the statement of claim alleging the loan contract and mortgage dated 22 July 2009 and the exhibited documents which bear date 3 July 2009. However, irrespective of which if either is accurate, Ms Huseyin…

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: [2012] NSWSC 279
Decision Date: 02 April 2012

CaseChat Overview and Summary

The case of Idik v Huseyin involves a dispute over a default judgment for possession of land and a loan agreement, which was set aside by the Registrar. The plaintiff, Zekeriya Idik, sought to review this decision. The defendants, Ayshen Huseyin and Layka Lambali, were respectively the registered proprietor of the land and the sister of the first defendant. The court had to determine whether the Registrar's decision to set aside the default judgment should stand.

The primary legal issues were whether the Registrar had the authority to set aside the default judgment and if there was a triable issue that justified the setting aside of the judgment. The plaintiff argued that the default judgment should stand because the defendant had not demonstrated a triable issue. The defendants argued that the transaction was unconscionable and that the defendant should be allowed to defend the claim.

The court held that the Registrar had the authority to set aside the default judgment and that there was a triable issue. The court found that the transaction was highly unusual and potentially unconscionable, and that the defendant should be allowed to contest the claim. The court also found that the plaintiff's arguments that the defendant had no case to answer were not persuasive. The court concluded that justice could not be achieved without a proper examination of the transaction, and that the motion to review the Registrar's decision was dismissed with costs.

The court's decision highlights the importance of individual justice and the need for courts to examine transactions that appear to be unconscionable or potentially fraudulent. The court found that the Registrar had the authority to set aside the default judgment and that there was a triable issue that justified the setting aside of the judgment. The court also found that the transaction was highly unusual and potentially unconscionable, and that the defendant should be allowed to contest the claim. The court's decision ensures that the defendant has an opportunity to properly defend the claim and that the court can properly examine the transaction.

Orders