Islam v Ul Karim - [2023] NSWSC 717

Supreme Court

New South Wales

Medium Neutral Citation: Islam & Anor v Ul Karim [2023] NSWSC 717
Hearing dates: 26 June 2023
Date of orders: 26 June 2023
Decision date: 26 June 2023
Jurisdiction: Common Law
Before: Weinstein J
Decision:
(1) I dismiss the Summons pursuant to rule 13.4 of the UCPR; and
(2) The first plaintiff is to pay the defendant's costs of and incidental to the Summons.

Catchwords:
CIVIL PROCEDURE – notice of motion – defendant’s application to dismiss plaintiffs’ Summons – rule 13.4 of the UCPR – whether plaintiffs have a reasonable cause of action – no reasonable cause of action made out – application granted - Summons dismissed

Legislation Cited:
Corporations Act 2001 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Ekes v CBA (2014) 313 ALR 665; [2014] NSWCA 336
General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125
State of New South Wales v Williams (2014) 242 A Crim R 22; [2014] NSWCA 177

Category: Procedural rulings
Parties: Mohammed Rajibul Islam (First Plaintiff)
Australian Real Estate Relations Pty Ltd (in liq) (Second Plaintiff)
Etimad Ul Karim (Defendant)
Representation:
Counsel:
First Plaintiff: self-represented
Defendant: J Raftery
Solicitors:
Mitry Lawyers (Defendant)

File Number(s): 2022/383209
Publication restriction: Nil

JUDGMENT – EX TEMPORE - REVISED

By way of notice of motion filed on 8 March 2023, the defendant Etimad Ul Karim seeks an order that the Summons filed by the plaintiffs on 19 December 2022 be dismissed or struck out on the grounds that the second plaintiff Australian Real Estate Relations Pty Ltd, is in liquidation and that the first plaintiff, Rajibul Islam, does not have a cause of action.
The applicant, Mr Ul Karim, relies upon an affidavit of Emma Brianne Watt affirmed on 8 March 2023 which was read in the proceedings. It contains six annexures, one of which was not admitted. Mr Islam relies on two affidavits. The first affidavit was sworn on 14 March 2023 and the second was sworn on 20 June 2023. There is also one exhibit in the proceedings. I observe that the first plaintiff represented himself at the hearing of the motion.
These facts are not in dispute. The second plaintiff traded as Raine & Horne Ingleburn. Mr Islam was a director and shareholder of second plaintiff and the defendant was employed by that company as its accountant. On 13 February 2023 in the Supreme Court of New South Wales, Black J ordered Australian Real Estate Relations Pty Ltd to be wound up and appointed David Levi as the liquidator. An application for stay of the winding up order was dismissed by the Court of Appeal in March of this year.
At a time when the company was not yet in liquidation, on 20 December 2022, Mr Islam commenced proceedings by way of Summons seeking the following relief:

“1. Criminal conviction record on defendant for undertaking fraudulent money transfers from the company bank account as the appointed company accountant without company directors' knowledge;

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.

Keep reading for free

Create a free CaseChat account to read Islam v Ul Karim and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NSWSC 717
Decision Date: 26 June 2023

CaseChat Overview and Summary

The parties involved in the case are Islam and Ul Karim, with the dispute centering around the defendant's application to dismiss the plaintiffs' Summons. The matter was heard in the Civil Court of the Supreme Court of a state in Australia. The plaintiffs, Islam, sought to commence a legal action against Ul Karim, and the defendant opposed this application by arguing that the plaintiffs did not have a reasonable cause of action.

The primary legal issue before the court was whether the plaintiffs had established a reasonable cause of action in their Summons. This determination was crucial, as it would decide whether the court should allow the proceedings to continue or dismiss the Summons as per rule 13.4 of the Uniform Civil Procedure Rules (UCPR). The court needed to assess the merits of the plaintiffs' claims to ascertain if there was a reasonable basis for their legal action.

Upon reviewing the evidence and submissions presented, the court found that the plaintiffs had not demonstrated a reasonable cause of action in their Summons. Consequently, the court held that the application by Ul Karim to dismiss the Summons should be granted. The court's decision was based on the lack of a reasonable cause of action, and thus, the Summons was dismissed as per rule 13.4 of the UCPR.

No additional orders were made by the court in this instance. The dismissal of the Summons meant that the plaintiffs' legal action against Ul Karim would not proceed further, and the matter was concluded with the Summons being dismissed.

Orders