Khouzame v Reozone Pty Ltd
[2015] NSWSC 1285
•31 August 2015
Supreme Court
New South Wales
Medium Neutral Citation: Khouzame v Reozone Pty Ltd [2015] NSWSC 1285 Hearing dates: 31 August 2015 Date of orders: 31 August 2015 Decision date: 31 August 2015 Jurisdiction: Common Law Before: Campbell J Decision: Leave to withdraw representation granted
Catchwords: APPEAL – application for leave to withdraw representation – where plaintiff was unwilling or unable to properly instruct solicitors and counsel Legislation Cited: Local Court Act 2007 (NSW) Category: Procedural and other rulings Parties: Pierre Khouzame (Plaintiff)
Reozone Pty Ltd (Defendant)Representation: Counsel: B.W. Tolson (solicitor) (Plaintiff)
Solicitors: Russell J Baxter, Solicitors (Plaintiff)
B. Miles (Defendant)
O’Neill Partners (Defendant)
File Number(s): 2015/165883
EXTEMPORE JUDGMENT (REVISED)
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This is an appeal from the decision of his Honour Magistrate Barko given in the Local Court of New South Wales.
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The defendant to the appeal sued the plaintiff, Mr Khouzame, in the Local Court on his guarantee of the indebtedness of a company called Safeway Constructions Pty Ltd which he controlled. Mr Khouzame is a licensed builder and the company was his vehicle for conducting that business.
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The dispute relates to the supply of reinforcing steel by Reozone Pty Ltd for a construction for which Mr Khouzame was the builder.
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The essential issues before the Magistrate were whether there had been an over-supply of steel and whether some of the steel supplied was defective. The Magistrate resolved those issues in favour of the defendant.
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Mr Khouzame commenced an appeal in this court pursuant to the provisions of s 39 Local Court Act 2007 (NSW). His summons was filed on 4 June 2015 and he was represented by at that time Russell J Baxter, solicitor.
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Mr Tolson, a solicitor in the employ of Mr Baxter, has appeared today when the matter was called for hearing seeking leave for his firm to withdraw from the proceedings. He informs me that certain matters, which I have not required him to specify, were put to Mr Khouzame leading up to and on Thursday 27 August 2015.
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I would understand, from the everyday experience of the Courts, and from what Mr Tolson has said, that Mr Khouzame was either unable to or unwilling to put his solicitors in the position to properly retain counsel to appear on the appeal today and in those circumstances the solicitors were no longer prepared to act for him.
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Mr Tolson informs me, and I accept, of course, that Mr Khouzame emailed his firm overnight on Thursday confirming that he was unable to accept the conditions imposed upon the continued retainer by the solicitors. Although he had some professional commitments in Parramatta Local Court on the morning of Friday 28 August 2015, Mr Tolson emailed Ms Nash, the solicitor for the defendant in this court, informing her that his firm was no longer acting for Mr Khouzame and that he would attend court today for the purpose of seeking leave to withdraw from the proceedings.
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Mr Miles of counsel, instructed by Ms Nash, appears for Reozone Pty Ltd and, with respect, properly takes the view that the matter of whether Mr Tolson should be permitted to withdraw is entirely a matter for me and not a matter about which he wished to be heard.
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When the matter was called on for hearing and Mr Tolson explained his position, in accordance with the usual practice, I caused Mr Khouzame's name to be called three times outside the court. There was no appearance.
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In the circumstances I think it appropriate that I should grant leave to Russell J Baxter, solicitor, to withdraw from the proceedings upon condition that a notice of ceasing to act is filed in the Registry pursuant my order by close of business today.
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It seems to me, reading between the lines, that Mr Khouzame was probably not in a position to pay counsel's fees and in those circumstances there is no reason why the solicitors should be required to act without recompense themselves.
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Decision last updated: 03 September 2015
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