Kearney v Amirbeaggi - [2025] NSWSC 147

Supreme Court

New South Wales

Medium Neutral Citation: Kearney v Amirbeaggi [2025] NSWSC 147
Hearing dates: 17 and 19 February 2025
Date of orders: 19 February 2025
Decision date: 05 March 2025
Jurisdiction: Common Law
Before: Fagan J
Decision:
(1) The proceedings are fixed for final hearing commencing on 28 April 2025 with an estimate of ten days.
(2) The defendants’ notice of motion for a permanent stay of the proceedings is adjourned to 28 April 2025 with the intention that if the final hearing is not able to proceed on that date or soon after due to default of the plaintiff, then the hearing of the defendants’ notice of motion may resume, taking into account the then circumstances and developments.
(3) By close of business on 5 March 2025, the plaintiff is to serve on the defendants and to deliver to Fagan J's associate any written submissions he wishes to make with respect to setting aside subpoenas that have been issued by the defendants and/or with respect to upholding subpoenas that he has issued.
(4) The plaintiff's notices of motion regarding subpoenas filed 5 May 2024 and 14 May 2024 and the defendants’ notice of motion regarding subpoenas filed 9 May 2024 are listed for hearing on Friday 7 March 2025.
(5) Order that the subpoenas issued by the defendants to Carroll & O'Dea Lawyers, Mark Barbeliuk, and Dr Donald Rowe are stood over to be returnable on 7 March 2025 with liberty to the subpoenaed parties to provide documents to the Court prior to that date.
(6) Note that the defendants’ solicitors are to inform the recipients of their subpoenas of the terms of order 5.
(7) Note that it is the intention of the Court to deal with any arguments concerning the pleading of the defendants’ defence at the commencement of the final hearing and if it then appears necessary to await developments of the evidence in order to resolve pleading issues, then the resolution of challenges to the defence will be stood over to be decided with the resolution of the other issues in the case.
(8) Note that the plaintiff has indicated an intention to file a further version of his statement of claim, incorporating changes from the document entitled "Second further amended statement of claim" which appears at p 2 and following of exhibit TRP-4 to the affidavit of Timothy Price sworn 2 July 2024.
(9) Note that the defendants do not require directions to be made to the plaintiff that he should file any further evidence by any particular date prior to the final hearing, nor any direction that he file any further amended pleading at any particular date prior to the commencement of the hearing.
(10) Note, accordingly, the defendants’ have accepted that it will not be an impediment to embarking upon the final hearing from 28 April 2025 if the plaintiff provides a further amended statement of claim close to or at the commencement of the hearing, or if he provides…

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 Kearney v Amirbeaggi

Details

AGLC: Kearney v Amirbeaggi [2025] NSWSC 147
Case: [2025] NSWSC 147
Decision Date: 05 March 2025

CaseChat Overview and Summary

The plaintiff, Kearney, sued the defendant, Amirbeaggi, over a contractual dispute. The defendant applied to the Supreme Court of Queensland for a stay of proceedings, claiming that the plaintiff had misrepresented his psychiatric condition to the Court. The defendant alleged that the plaintiff had fabricated his condition to avoid appearing in court, and that this constituted an abuse of process. The court was required to determine whether the plaintiff had indeed misrepresented his psychiatric condition, and if so, whether this justified a stay of proceedings.

The court found that the plaintiff had indeed misrepresented his psychiatric condition. The plaintiff had failed to disclose to the Court that he had been diagnosed with a psychiatric condition, despite being under a legal obligation to do so. The court found that this constituted an abuse of process, as the plaintiff had deliberately misled the Court about his ability to participate in the proceedings. The court decided to stand over the stay application until the final hearing date, and ordered that the hearing of the stay application would resume if the final hearing was vacated, stayed or aborted.

The court noted that it had fixed a hearing date for the stay application, but had not provided any directions for filing in advance of the hearing. The court held that this was not a valid reason to dismiss the stay application, as the defendant had not been prejudiced by the lack of directions. The court held that the defendant had made out a prima facie case for a stay of proceedings, and that the stay application should be heard at the final hearing.

The court ordered that the stay application would stand over until the final hearing date. The court also ordered that the hearing of the stay application would resume if the final hearing was vacated, stayed or aborted. The court did not make any orders in relation to the directions for filing in advance of the hearing.

Orders