Issa v Osman (No 5)

[2018] NSWSC 968

Supreme Court

New South Wales

Medium Neutral Citation:	Issa v Osman (No 5) [2018] NSWSC 968
Hearing dates:	25 June 2018
Date of orders:	25 June 2018
Decision date:	25 June 2018
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	Leave to withdraw motion granted. No order as to costs of the motion.
Catchwords:	PROCEDURE – notice of motion – motion withdrawn – costs
Cases Cited:	Issa v Osman (No 2) [2017] NSWSC 663 Issa v Osman (No 4) [2017] NSWSC 1790
Category:	Procedural and other rulings
Parties:	Peter Issa (First Plaintiff) Eva Mary Issa (Second Plaintiff) Youssef Osman (First Defendant) Mohamed Khaled Osman (Second Defendant)
Representation:	Counsel: J O’Connor (Plaintiffs)   Solicitors: Barrak Lawyers (Plaintiffs)
File Number(s):	2016/60481
Publication restriction:	Nil

EX TEMPORE Judgment

1. HER HONOUR: Before the Court today is a motion filed on 21 June 2017 by which the plaintiffs sought various orders against the first and second defendants. Part of the motion was dealt with in November 2017 by Garling J in Issa v Osman (No 4) [2017] NSWSC 1790, when his Honour made orders vacating Order 5 which he had made on 8 June 2017 in Issa v Osman (No 2) [2017] NSWSC 663.

2. The balance of the motion was listed for hearing before me today when initially it was advanced, or parts of it were advanced, by reference to documents contained in a court book which had been filed by the plaintiffs. Contained in that court book were affidavits sworn by the plaintiffs’ solicitor, Mr Barrak, in June and October 2017, as well as written submissions which had been filed by the first defendant's counsel in September 2017 and further submissions advanced for the plaintiffs in writing on 4 May 2018.

3. There is no appearance today by the first defendant, against whom orders sought in the motion were pressed, despite there still being a solicitor on the record, Zreika Legal.

4. In a further affidavit sworn on 25 June 2018, Mr Barrak explained attempts at further communication with the first defendant's legal representative, which had been unsuccessful. Why it is that there was no response to any of those communications and no appearance today, is not apparent.

5. Initially it was indicated for the plaintiffs that only orders 3 and 4 in the motion would be pressed. Submissions as to those motions were advanced before I took an adjournment so that further instructions could be sought, given the apparent difficulties which lay in the way of making the orders there sought in the motion.

6. On resumption I was informed that the plaintiffs’ instructions were to withdraw the motion, on the basis that no order as to costs would be made.

7. In all of the circumstances I have outlined, I am satisfied that it is appropriate to make that order, the position being that there was obvious difficulty with making the orders which were pressed today, even though the first defendant did not appear to resist them, given what had transpired earlier in the proceedings.

8. Accordingly, leave to withdraw the motion is granted and as to costs, I order that there be no order as to costs of the motion.

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Decision last updated: 25 June 2018