Jamal Charara v Elias Tabchouri t/a Macquarie Lawyers

[2015] NSWSC 183

Supreme Court

New South Wales

Medium Neutral Citation:

Jamal Charara v Elias Tabchouri t/a Macquarie Lawyers [2015] NSWSC 183

Hearing dates:

6 March 2015

Date of orders:

06 March 2015

Decision date:

06 March 2015

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

(1) The Court declines to grant the relief sought in prayers 1 or 2 of the motion. The notice of motion is dismissed in so far as prayers 1 and 2 are concerned.
(2) In relation to prayer 3, that is the application that the defendant's name be amended on the statement of claim to add one word, “Burwood”. With the amendment the defendant is nominated “Elias Tabchouri trading as Macquarie Lawyers, Burwood”. I grant leave to make that amendment and the statement of claim will be so amended.
(3) Costs are awarded in favour of the defendant against the plaintiff on an ordinary basis. Those costs are to be made payable forthwith.

Catchwords:

REAL PROPERTY – caveat – whether basis for extension

 

REAL PROPETY - application for a freezing order

  INTERLOCUTORY – amendment of documents

Legislation Cited:

Real Property Act 1900
Uniform Civil Procedure Rules 2005

Category:

Procedural and other rulings

Parties:

Jamal Charara (Plaintiff)
Elias Tabchouri T/A Macquarie Lawyers (Defendant)

Representation:

Counsel: Mr SJ Maybury (Defendant)
Plaintiff in person, self-represented

File Number(s):

2015/18717

Ex tempore Judgment

1. Before the Court for determination is a notice of motion filed by the plaintiff, Jamal Charara on 2 March 2015. Mr Charara, who acts for himself in these proceedings, has moved on the motion. He relies upon his own evidence on affidavit together with documents which are annexed to that affidavit, and upon affidavit evidence from Alfred Youssef Azzo in support of the motion.

2. The plaintiff seeks orders from this Court extending a caveat over property which is situate at Parramatta Road in Concord. Alternatively, a freezing order which is articulated in a sum of money that being $230,593 over the property at Marlborough Street. There is an additional prayer to amend Mr Charara's statement of claim, but that is not controversial and can be dealt with by consent. I will return to that later.

3. The background to the motion is a debt which is alleged to be owed by the defendant, Elias Tabchouri, originally to Mr Azzo. That debt was subsequently assigned by Mr Azzo to the plaintiff, and it is in purported enforcement of that debt that the current action is taken. It is not necessary to set out the history of the matter in any detail, and of course, the issues at large are yet to be determined by the Court. The matter is at an early stage.

4. As an overall, brief summary, the history of the matter is as follows. In November of either 2008 or 2009, there being reference to both years in the material before the Court, Mr Azzo retained the plaintiff, who is a practicing solicitor, to act as his solicitor in the sale of real property 60A Marlborough Street, in either Smithfield or Fairfield. The evidence before the Court refers to it as being in both suburbs from time to time. The property was subsequently sold in accordance with Mr Azzo's instructions and the defendant acted on the sale of the property to do all things necessary to effect the sale. That involved the discharge of the mortgage over the property which was held by the National Australia Bank and required, of course, the transfer of land from Mr Azzo to the purchaser. The identity of the purchaser is not particularly of relevance to these proceedings.

5. The debt which was alleged to have been owed by the defendant to Mr Azzo, is said to have arisen because of a sum - specified as $111,000 - which Mr Azzo asserts was not accounted for by the defendant from the sale monies, being neither applied to the discharge of the mortgage or paid to Mr Azzo as surplus proceeds payable to him. There is an affidavit from Mr Azzo read before the Court which asserts that after the sale of the property, he endeavoured, over a relatively extended period of time, to recover from the defendant that sum, but without success. He advances a number of reasons for his failure to recover the debt including the absence of any legal assistance and personal illness.

6. In any event, in January 2015, it is asserted that Mr Azzo assigned the debt that he claimed was owed to him by the defendant to Mr Charara. There is, before the Court, a copy of a document recording the assignment of the debt, which is witnessed by a Justice of the Peace. Having received the assignment of debt, Mr Charara took action to seek payment of the debt from the defendant.

7. In an endeavour to secure what he claimed to be a debt owed to him, Mr Charara filed a caveat over property which was owned by the defendant, that property being the property in Concord. The premises is used by the defendant as his place of business, and is the registered address for the firm of solicitors of which he is the principal. Mr Tabchouri conducts his solicitor's practice from the particular premises.

8. A lapsing notice was filed by the defendant relevant to the caveat and hence, the motion which has now been brought by Mr Charara before this Court.

9. Mr Charara's claim, in summary, is that Mr Azzo had a legitimate and enforceable debt against the defendant. Mr Azzo assigned that debt to Mr Charara. As a consequence, Mr Charara has, he claims, an enforceable debt against the defendant. It appears that the caveat was lodged by him and the extension of it is now sought by, in an endeavour to protect that particular debt which he says is owing to him.

10. Mr Charara has submitted to the Court, and refers to it in his affidavit evidence, that he has fears that the defendant will dispose of the Concord property in an attempt to frustrate the Court's determination of the dispute between the parties, and it is therefore necessary for the Court to extend the caveat filed over the premises to protect Mr Charara's legitimate interests.

11. Mr Maybury, counsel for the defendant, opposes the granting of the relief sought by Mr Charara in prayers 1 and 2 of the motion. In brief, the defendant disputes that any debt arose at all from his conduct of the sale of the premises in Marlborough Street. Even if such a debt arose, it is contended that that debt does not give rise to any interest in land, and that there is no caveatable interest held by Mr Charara as the assignee of the debt.

12. The application to extend the caveat requires consideration to be given to the relevant provisions of the Real Property Act 1900. Section 74F of the Act governs the lodgement of caveats, and s 74K provides a power to this Court to extend the operation of the caveat which was lodged pursuant to s 74F. Subsection (2) provides that:

(2)    […] on the hearing of an application made under subsection (1), the Supreme Court may, if satisfied that the caveator’s claim has or may have substance, make an order extending the operation of the caveat concerned for such period as is specified in the order or until the further order of that Court, or may make such other orders as it thinks fit, but, if that Court is not so satisfied, it shall dismiss the application.

13. It is necessary therefore, for the Court to consider whether or not Mr Charara has established that the caveat which he filed over the premises at Concord is based upon a claim that has or may have substance.

14. In an endeavour to support a conclusion that his claim does have substance, Mr Charara relies upon the affidavit evidence from himself and that from Mr Azzo. Mr Azzo's evidence in my view – taken at its highest - is capable of establishing that a debt is owed by the defendant, but there is nothing in his evidence which, it seems to me, establishes that that debt has any attachment to the property owned by the defendant in Concord. The evidence does not establish that the debt, even assuming it is made out, entitles Mr Azzo at first instance, but Mr Charara as an assignee of the debt, any legitimate interest in land situate at the Concord address.

15. The evidence does not establish in my view, any claim of substance or indeed, any claim at all, over the property in Concord.

16. There is nothing in the material which establishes that Mr Azzo had or has a legal or equitable interest in the land owned by the defendant, and nor is there anything in the evidence which establishes that such a legal or equitable interest in the land transferred with the assignment of debt to Mr Charara. If there is a debt, and that will be an issue to be determined by the Court when the substantive proceedings are heard, that debt on the evidence before the Court today, gives rise to no interest whatsoever in the Concord premises. That being the conclusion of the Court, there is no basis upon which prayer 1 could be granted, there simply being no interest which is legitimately secured by caveat.

17. The alternative prayer for relief from Mr Charara is to seek a freezing order over the defendant's real properties, that freezing order being said to be necessary to secure the debt particularised in the sum referred to earlier. Whilst Mr Charara has said in his affidavit, and asserts from the bar table, that he is fearful that the defendant will dispose of his property in a deliberate attempt to obfuscate the processes of the Court, there is in fact no actual evidence of that, as opposed to assertion without foundation or evidence. There is nothing to suggest that the defendant has taken steps to ready the property for sale or to otherwise transfer it to another owner.

18. It is pointed out by Mr Maybury for the defendant that, given that these premises are the place of practice of Mr Tabchouri, he is not in a position to readily dispose of them, and to do so as a deliberate mechanism to frustrate the processes of the Court would plainly have consequences for him as an officer of the Court, consequences that would not flow to others who do not hold such office.

19. There is no evidence as to the value of the Concord property, and I am not altogether certain of the material placed before the Court how a freezing order for a specified sum could relate to this particular property of an unestablished value.

20. The Court can grant a freezing order pursuant to the Uniform Civil Procedure Rules or as part of its inherent jurisdiction. For such a freezing order to be made, it must be clear firstly, that there is an actionable cause, a prima facie case against the defendant for the debt, and secondly, that there is reason to conclude that the defendant will seek to dispose of the property. It is difficult to assess the strength of Mr Charara's claim against the defendant on the material which is presently available, and it is of course, acknowledged that it is an early stage of the proceedings and these remain triable issues before the Court.

21. I am prepared to proceed on the basis that the plaintiff is able to show a prima facie cause of action against Mr Tabchouri, but even accepting that that is so, I am not able to conclude that a freezing order for the Concord premises is necessary to secure a cash debt said to be owed to Mr Charara.

22. There is no evidence before the Court to suggest that the properties referred to in the statement of claim are likely to be disposed of or, in some way, liquidated to prevent the plaintiff from succeeding on his claim. Again in support of that, Mr Charara makes a number of allegations, some of which are quite serious against the defendant and which, if made out, would have adverse consequences against Mr Tabchouri on a number of fronts, to say the very least, but they are assertions only. They are expressions of opinion without there being evidence as to the basis of the opinion, other than the fact that Mr Charara says that he has known the defendant in the Lebanese community for some years.

23. This court cannot and does not act on rumour, assertion and unqualified opinion; it acts upon evidence, and there is no evidence that the defendant will seek to frustrate the determination of this claim legitimately before the Court by disposing of the relevant premises at Concord.

24. They being the conclusions of the Court, the orders in terms of the notice of motion that I make are these:

1. The Court declines to grant the relief sought in prayers 1 or 2 of the motion. The notice of motion is dismissed in so far as prayers 1 and 2 are concerned.

2. In relation to prayer 3, that is the application that the defendant's name be amended on the statement of claim to add one word, “Burwood”. With the amendment the defendant is nominated “Elias Tabchouri trading as Macquarie Lawyers, Burwood”. I grant leave to make that amendment and the statement of claim will be so amended.

25. Having dismissed the notice of motion filed with the Court on 2 March 2015 lodged by Mr Charara except in so far as the relief claimed in prayer 3 is relevant, the defendant to the motion seeks an order for costs in his favour and asks that those costs be awarded as indemnity costs and payable forthwith. That submission is based upon a contention that the action was doomed to fail as being entirely without substance, together with a submission that the applications were brought unreasonably, and any order for costs which are not payable forthwith would result in delay to the defendant in collecting costs.

26. Mr Charara opposes an order for costs and says that the defendant will not be prejudiced because if costs are simply costs in the proceedings, it can be determined at the end of the proceedings, and anything which is determined to be payable to the defendant can be deducted from the claim. That of course, supposes that the statement of claim will be successful and the Court will make an order ordering the defendant to pay the debt and any interest payable. That is something that I cannot determine or prejudge. There is insufficient evidence for me to be in a position to predict the outcome of those proceedings, but I think it is reasonable to conclude that it is not certain that the plaintiff will, in fact, be successful in his action.

27. That leads me to the conclusion that there may be some prejudice to the defendant were costs to be awarded but not made payable forthwith. Mr Charara is unrepresented, and whilst he tells me from the bar table that he has some 25 years’ experience acting in legal proceedings in some capacity which is not clear, he is still, I think, significantly disadvantaged as compared to a person with legal training and experience as a lawyer. That is something that I think I can have regard to and do have regard to, but only to the extent of the basis upon which costs ought be payable.

28. It seems to me that this action was doomed for failure. There is no legitimate interest in land, certainly not in the land which has been made the subject of the caveat. There is no evidence which would support the need for a freezing order. That being the case, I think the defendant is entitled to his costs of having to retain counsel and attend the Supreme Court to meet this motion. It is the question of whether the costs should be indemnity or ordinary, and payable forthwith or not that has exercised my concern, perhaps to a greater extent.

29. I am not prepared to make an order for indemnity costs. I make an order for costs on the ordinary basis, but because it is impossible to predict the disposition of the ultimate matter, I am prepared to make the order for costs payable on an ordinary basis and payable forthwith. Therefore, I make the following orders:

(3)        Costs are awarded in favour of the defendant against the plaintiff on an ordinary basis. Those costs are to be made payable forthwith.

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Decision last updated: 10 March 2015