Khattar v Khattar; Fayad v Khattar

[2022] NSWCA 237

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Khattar v Khattar; Fayad v Khattar [2022] NSWCA 237

Hearing dates:

16 November 2022

Date of orders:

16 November 2022

Decision date:

16 November 2022

Before:

Griffiths AJA

Decision:

In proceeding 2022/00142224:

(1) The hearing dates of 17 and 18 November 2022 are vacated.

(2) The appeal be listed for directions before the Registrar on a date to be advised.

In proceeding 2022/00144444:

(3) The notice of motion filed on 15 November 2022 is allowed.

(4) The hearing dates of 17 and 18 November 2022 are vacated.

(5) The appeal be listed for directions before the Registrar on a date to be advised.

Catchwords:

CIVIL PROCEDURE – Application to vacate hearing dates – Counsel for one appellant unwell and unable to attend hearing in person or by AVL – Application to vacate hearing granted

Category:

Procedural rulings

Parties:

Joseph Khattar (Appellant in 2022/00142224)
Maria Fayad (Appellant in 2022/00144444)
Carol Lourdes Khattar (First Respondent)
Georgia Khattar (Second Respondent)
Alana Khattar (Third Respondent)

Representation:

Counsel:
M Condon SC and D Smith (Appellant in 2022/00142224)
J Pope (Solicitor) (Appellant in 2022/00144444)
P Knowles SC (Respondents)

Solicitors:
Sage Solicitors (Appellant in 2022/00142224)
Pope & Spinks (Appellant in 2022/00144444)
O’Loughlin Westhoff (Respondents)

File Number(s):

2022/00144444

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Equity (Expedition List)

Citation:

[2022] NSWSC 363

Date of Decision:

30 March 2022

Before:

Sackar J

File Number(s):

2020/00270245

JUDGMENT – EX TEMPORE

1. There are two appeals listed to be heard together tomorrow and Friday, 17 and 18 November 2022. The first appeal is Joseph Khattar v Carol Khattar 2022/00142224. The second appeal is Maria Fayad v Carol Khattar 2022/00144444. There are the same three respondents in both appeals: Ms Carol Khattar and her two daughters, Georgia and Alana Khattar.

2. The appellant in the second appeal (Ms Fayad) moves on a notice of motion filed on 15 November to vacate the hearing of that appeal. The motion is supported by two affidavits, dated 15 and 16 November 2022, which have been filed in Court today. They are affidavits affimed by Ms Fayad’s instructing solicitor, Mr James Pope.

3. The appellant in the first appeal (Mr Khattar) neither consents to nor opposes the application to vacate. He contends, however, that the two appeals should be heard together.

4. The respondents oppose the application. They do not question the soundness of the medical evidence which is relied upon, about which I will have something to say shortly. But, in essence, Mr Knowles SC (who appeared for the respondents) put forward three submissions.

5. The first is that the appellants have been dilatory in their steps in terms of the respondents’ attempts to enforce the judgment debt arising out the judgment below. Mr Knowles said that, in those circumstances, it would be prejudicial to his clients if the matters did not proceed this week as scheduled.

6. Secondly, he questioned the proposition that was put forward by Mr Pope that it was not practicable to retain another counsel to replace the existing counsel briefed to appear for Ms Fayad.

7. Thirdly, Mr Knowles urged the Court to defer the question of vacating the appeals until some later time (presumably, later tomorrow) when the health of the counsel who has been briefed to appear for Ms Fayad will be able to be reassessed.

8. The evidentiary basis for the application relates to the health of the counsel currently retained for Ms Fayad. No direct medical evidence has been filed. But, based on Mr Pope’s unchallenged evidence, there can be no doubt that counsel is currently suffering from COVID‑19 and is too ill to appear on either day of the hearing, in person or by AVL. Mr Pope deposes that he was told by his counsel today that his doctor had advised that his flu‑like symptoms (high temperature, bad headaches and heavy fatigue) are likely to increase to a peak on day 5 of his illness, being tomorrow, the first day set down for the hearing of the appeals.

9. In the substantive appeals, various submissions have been filed. There is an outline of written submissions in chief, signed by counsel, which was filed on behalf of Ms Fayad on 31 October 2022. To date, no submissions in reply have been filed by that party, and Mr Pope has candidly acknowledged that this is in breach of the Court’s orders, which required that they be filed by 10 November 2022.

10. The appellant in the other appeal, Mr Khattar, has filed outlines of written submissions, both in chief and in reply. And the respondents in both appeals have filed outlines of submissions. In that sense, the appeals are ready to proceed, absent the reply submissions of Ms Fayad to which I have referred.

11. It may be noted that in the submissions that have been filed to date, the respondents expressly acknowledge that the appeals differ in some respects. The appellant in each matter raises matters which are not raised by the other appellant. But the respondents also correctly acknowledge that there are some common issues in both appeals.

12. The factual substratum is also largely common to both appeals. Both the proceedings below and the appeals depend largely on the construction of several deeds and other agreements.

13. The extensive overlap in the proceedings is reflected in the fact that the primary judge provided a single set of reasons in both matters. The appellants were the second and third defendants in the proceedings below. The first defendant below is not a party to either appeal.

14. It goes without saying that it is most unfortunate that the hearing of the appeals may need to be vacated, having regard to the resources deployed to date to have the matters ready for hearing, and also the prejudice to which Mr Knowles has referred.

15. I am comfortably persuaded, however, that counsel for Ms Fayad is physically unable to appear at the hearing on either day because of his illness. His current health condition is such that it would be unreasonable to expect him to appear by AVL.

16. Also, given the complexity of the appeals, I consider that there has been insufficient time for Mr Pope to find another counsel who could get on top of what would be a complex brief in the short time that is available.

17. I am also not persuaded by Mr Knowles’ submission that I should defer ruling on the notice of motion. I think it impracticable to expect that the counsel who is briefed will be able to recover from what is expected to be the peak of his illness and be available to appear the very next morning after that peak is predicted to be reached in order to conduct the appeal.

18. Accordingly, I consider that the hearing of Ms Fayad’s appeal should be vacated.

19. It is necessary in the light of the matters that I have referred to above to also consider the implications for Mr Khattar’s appeal and whether or not it should also be vacated. I believe that, given the overlap in the proceedings and the relevance of the several deeds and other documents in both appeals, the two proceedings should travel together.

20. Another significant matter which I take into account is the importance of a fair and just allocation of judicial resources. Mr Condon SC (who appeared for Mr Khattar) has indicated that he considers that both appeals can be disposed of in a single day if they are heard together. I understood Mr Knowles to agree with that proposition. If the appeals are split, two hearing days will inevitably be required. It is preferable, in my opinion, to vacate the hearing dates for both appeals so that they can travel together and be heard in a single day in the future.

21. It may offer the respondents some comfort to know that, based upon my inquiries with the Registrar this afternoon, there is a very good prospect that one day can be found before the end of term for the appeals to be heard together. That is a matter that can be raised when the matter is brought back before the Registrar, as I will shortly direct.

22. Accordingly, the orders of the Court are that the hearing of both appeals listed for 17 and 18 November 2022 be vacated with no order as to costs. The appeals should be listed for directions before the registrar on the date to be advised, at which point consideration can be given to, hopefully, finding a hearing date before the end of term. And in the meantime, as soon as counsel is available to do so, steps should be taken to remedy the default in the timetabling and the requirement that submissions in reply be filed and served.

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Decision last updated: 21 November 2022