Khattar v Khattar; Fayad v Khattar

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…