Karam v Coles Supermarkets Australia Pty Limited

[2014] NSWDC 334

District Court

New South Wales

Medium Neutral Citation:	Karam v Coles Supermarkets Australia Pty Limited [2014] NSWDC 334
Hearing dates:	31 January 2014
Date of orders:	31 January 2014
Decision date:	31 January 2014
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	The plaintiff’s notice of motion is dismissed.
Catchwords:	PRACTICE AND PROCEDURE – application to set aside consent judgment – applicant a litigant in person – unfamiliar with all the terms of the settlement – received less than expected – no funds to cover future medical expenses
Legislation Cited:	Uniform Civil Procedure Rules 2005, r 36.15
Category:	Procedural and other rulings
Parties:	Bassam Karam (plaintiff) Coles Supermarkets Australia Pty Limited (first defendant) George Western Foods Limited (CAN 008 429 632) (second defendant)
Representation:	Solicitors: Riley Gray-Spencer Lawyers (first and second defendants)
File Number(s):	2011/164840
Publication restriction:	None

Judgment

1. Bassam Karam, who appears before me self-represented, commenced proceedings against the first defendant, Coles Supermarkets Australia Pty Limited (“Coles”), and the second defendant, George Weston Foods Limited (“George Weston Foods”), for damages arising out of an injury allegedly suffered in a Coles supermarket.

2. Consent orders were made on 25 June 2013 for a judgment in the sum of $77,000 in favour of Mr Karam against George Weston Foods, a verdict and judgment in favour of Coles, with no order as to costs, and other orders. The evidence discloses that the defendants have paid $77,000 in accordance with that consent judgment.

3. Mr Karam has filed a notice of motion seeking the following orders:

“1 For the judgement entered into on the 25th June 2013 in favour of the Plaintiff Bassam Karam Pursuant to UCPR 36.15 (1), be set aside.

2 Case to be restored to the list and heard before a judge.

3 For the plaintiff to seek damages from the defendant in the case, not just the legal fees.

4 Defendants to cover plaintiffs future Costs in relation to this motion/case.

5 Time limits be waived for the plaintiff in this case until final judgement.

6 Such further Orders as this Honourable Court sees fit.”

4. Rule 36.15(1) of the Uniform Civil Procedure Rules 2005 provides:

“A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.”

5. Mr Karam asserts that the judgment should be set aside because he was not familiar with all of the terms of the judgment, because he received less than he was said to have been promised by his then solicitors, Brydens Compensation Lawyers (“Brydens”), and because he has further expected future medical expenses and has no moneys to pay them.

6. The documentary and other evidence before me establishes, and Mr Karam admitted as much in his submissions, that he knew and agreed to a settlement of $77,000, of which he would receive at least $20,000. From this agreed settlement I must infer that he was well aware that there were some substantial amounts in the nature of legal costs, disbursements and the like that would be paid from the $77,000 settlement.

7. The fact that there were other terms with which Mr Karam was unfamiliar, in circumstances where he was represented by a solicitor, and that solicitor agreed to those other terms, is not a reason why the judgment should be set aside. In my view, Mr Karam has authorised the settlement. He may have misunderstood its terms and the amount he would actually receive, but they are not matters for which the defendants are responsible. It was his solicitor, not the defendants, who undertook to advise him of the effect of the settlement and ensure that he understood and agreed to it.

8. The second issue raised by Mr Karam, that he received less than Brydens promised him, is again not a matter for which the defendants are responsible. If Brydens have misrepresented to Mr Karam the effect of the settlement, Mr Karam might have entitlements against them, but the defendants cannot be held to account for any broken promises by Mr Karam’s solicitors.

9. Thirdly, Mr Karam argued that he still has future medical costs and no funds with which to pay them. If that is so, it may indicate the folly of agreeing to the settlement, although no doubt there were other relevant factors in that decision. But having agreed to the settlement in the sum of $77,000, the existence of future expenses or the impecuniosity of the plaintiff are not reasons for setting aside the judgment.

10. Accordingly, whatever rights Mr Karam may have against Brydens, his solicitors, who acted for him in the proceedings and signed the consent judgment, he has not established any irregularity, illegality or lack of good faith by the defendants entitling him to have a judgment set aside.

11. Accordingly, the plaintiff’s notice of motion is dismissed.

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Decision last updated: 17 June 2015