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Kadeh v Gill

Kadeh v Gill

Case [2000] SASC 367 1 November 2000

Collateral Abuse of Process - Malicious Prosecution

Civil Litigation & Procedure

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KADEH v GILL & ORS
[2000] SASC 367

Full Court: Doyle CJ, Williams & Wicks JJ

1................ DOYLE CJ....... The appellant, Mr Kadeh, appeals against an order made by a Judge of the District Court entering a summary judgment in favour of Ms Olsson, the defendant in an action brought by Mr Kadeh against Ms Olsson. Ms Olsson was one of five defendants in the action. I assume that the action against the other defendants is proceeding.

For the purposes of the appeal it suffices to focus on Mr Kadeh’s claims and allegations against Ms Olsson. However, along the way I will identify the other defendants in the action.

Facts

The facts relevant to the appeal are largely uncontroversial. There are some matters which, if Mr Kadeh’s claim proceeds to trial, will be disputed, and the inferences to be drawn from some of the matters not in dispute will also be disputed. However, for present purposes it is not necessary to deal with those disputed matters. The appeal can be disposed of on the basis of matters which are, I consider, uncontroversial. The outline of the facts that follows is drawn from Mr Kadeh’s Statement of Claim in the District Court, and at times from affidavits that were before the Judge. I will indicate when I am drawing on affidavits, as distinct from Mr Kadeh’s Statement of Claim.
Mr Kadeh is the registered lessee of premises at Semaphore, at which premises he sells fish and chips. Mr and Mrs Gill (“the Gills”) became the registered proprietors of the property. The term of the lease was to expire on 29 October 1997, but Mr Kadeh had two rights of renewal.
On 24 May 1997, after earlier written notice of their intention to do so, the Gills purported to terminate the lease on the grounds that certain provisions of the lease were rendered void by virtue of s 22(3) of the Retail and Commercial Leases Act 1995 (SA), and that the Gills were entitled to terminate the lease having given one month’s notice in writing of their intention to do so. An affidavit sworn by Ms Olsson states that the firm of Mellor Olsson, in which firm she is a partner, was advising the Gills from April 1997 in relation to Mr Kadeh. Ms Olsson was involved in advising them.
Mr Kadeh resisted the claim by the Gills to take possession of the premises from him. He instituted proceedings in the Civil Division of the Magistrates Court at Port Adelaide on 23 May 1997. These proceedings were issued on his behalf by a solicitor, Mr Patsouris. In the proceedings he claimed an order under s 68 of the Retail and Commercial Leases Act 1995 (SA).
On 6 June 1997 the Gills gave notice to Mr Kadeh that they had re‑entered the premises at Semaphore, relying upon their earlier purported termination of the lease.
Mr Kadeh’s civil action against the Gills came on for hearing in the Magistrates Court at Port Adelaide…

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.

Continue reading Kadeh v Gill

Details

AGLC: Kadeh v Gill [2000] SASC 367
Case: [2000] SASC 367
Decision Date: 1 November 2000

CaseChat Overview and Summary

In the matter of Kadeh v Gill, the appellant, Mr Kadeh, appealed against an order made by a Judge of the District Court entering a summary judgment in favour of Ms Olsson, one of the defendants in an action brought by Mr Kadeh. The primary legal issues in the appeal were whether the Judge erred in making the order and if so, whether the appeal should be allowed. The Full Court of the Supreme Court of South Australia found that the appeal must be allowed to the extent that the Judge entered summary judgment on the claim for damages for abuse of process. The Full Court also found that the claims for trespass and negligence against Ms Olsson were not maintainable and substituted an order striking out those paragraphs of the Statement of Claim with liberty to Mr Kadeh to amend the Statement of Claim in respect of those claims if so advised, within fourteen days.

The Full Court held that the allegations of fact by Mr Kadeh regarding Ms Olsson's preparation of false and misleading affidavits and seeking a restraining order to evict him from the premises could not be disposed of in a summary way. The misuse of legal process to obtain the end sought, and the suffering of damage or harm, were the essence of the tort upon which Mr Kadeh relied. The Full Court found that the matters pointed to by the respondent's counsel did not show that Mr Kadeh's action could not succeed on any view of the law or of the facts.

Regarding the claim for trespass, the Full Court found that the trespass of which Mr Kadeh complained appeared to be the action of a police officer enforcing the restraining order. The Full Court held that the claim in trespass was not maintainable as against Ms Olsson, as her conduct in applying for the restraining order on behalf of Mrs Gill was not sufficient to constitute a trespass.

Lastly, the Full Court found that the claim in negligence was also defective, as Mr Kadeh's Statement of Claim did not identify any circumstances that would establish a duty of care owed by Ms Olsson to Mr Kadeh. The Full Court substituted an order striking out the paragraphs of the Statement of Claim in which a claim is made against Ms Olsson for trespass and for negligence, with liberty to Mr Kadeh to amend the Statement of Claim in that respect if so advised, within fourteen days. The Full Court ordered that Mr Kadeh be at liberty to amend the Statement of Claim to plead a claim in trespass and negligence against the defendant Olsson, within a period of fourteen days, if so advised.

Orders