Lichaa v Boutros

Case [2023] NSWDC 183

District Court


New South Wales

Medium Neutral Citation: Lichaa v Boutros [2023] NSWDC 183
Hearing dates: 31 May 2023
Date of orders: 06 June 2023
Decision date: 06 June 2023
Jurisdiction:Civil
Before: Judge Levy SC
Decision:

1. The plaintiff has leave to rely upon the affidavits of Joanne Lichaa and Aneet Kaur Bhalla made on 27 February 2023 at the reference;

2. The plaintiff has leave to issue a subpoena to Edward Farah to give evidence to the reference;

3. The defendant is to pay the plaintiff’s costs of her notice of motion filed on 17 March 2023 as amended on 31 May 2023;

4. Liberty to apply on 7 days’ notice if further or other orders are required.

Catchwords:

PRACTICE & PROCEDURE – interlocutory orders made in the course of a reference made pursuant to UCPR r 20.14 permitting reliance on particular affidavit evidence and related orders as to costs

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56, s 58

Uniform Civil Procedure Rules 2005 (NSW), r 20.14

Cases Cited:

Angel v Hawkesbury Council [2008] NSWCA 130

Blacktown City Council v Hocking [2008] NSWCA 144

Goode v Angland [2017] NSWCA 311

Lichaa v Boutros [2021] NSWCA 322

Lichaa v Boutros, Judge Olsson SC, unreported, 16 March 2021

Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326

Warren v Gittoes [2009] NSWCA 24

Yarrabee Coal Company Pty Ltd & Anor v Lujans [2009] NSWCA 85

Category:Procedural rulings
Parties: Odette Lichaa (Plaintiff)
Maroun Boutros (Defendant)
Representation:

Counsel:
Mr LD Corbett (Plaintiff)
Mr F Anwar (Defendant)

Solicitors:
Observatory Legal (Plaintiff)
Farah Lawyers (Defendant)
File Number(s): 2018/275277
Publication restriction: None

Judgment on plaintiff‘s notice of motion

  1. An interlocutory dispute has arisen in these proceedings which have had a complex and chequered history. The homeowner plaintiff’s cause of action concerns a claim for damages against the defendant builder in respect of alleged defective building works under a home building contract, where two builders have been involved in the works in question.

  2. Initially, the issues for trial in the proceedings were determined by her Honour Judge Olsson SC on 16 March 2021, in an unreported decision by which the defendant obtained a verdict in his favour.

  3. The plaintiff appealed that decision and achieved partial success in her appeal. On 16 October 2021, the Court of Appeal set aside the orders made at first instance and remitted the matter to this Court for a new trial for the determination of limited issues: Lichaa v Boutros [2021] NSWCA 322.

  4. On 10 November 2022, when the matter came before his Honour Judge Robison, an order was made pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 20.14 referring the matter to a Referee for the determination of those residual issues.

  5. That reference remains unconcluded because on 14 March 2023 the Referee made indicative orders whereby it was made clear to the parties that although he would have regard to the contents of some photographic evidence annexed to affidavit evidence relied…

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Details
AGLC
Lichaa v Boutros [2023] NSWDC 183
Case
[2023] NSWDC 183
Decision Date

CaseChat Overview and Summary

The case of Lichaa v Boutros involved a reference to the court under the Uniform Civil Procedure Rules 2005 (NSW), Rule 20.14, concerning interlocutory orders. The plaintiff, Lichaa, sought various orders to assist in the resolution of her claim against the defendant, Boutros. These included leave to rely on certain affidavit evidence and the issuance of a subpoena to a third party, Edward Farah. Additionally, Lichaa sought costs associated with a notice of motion.

The court was required to decide whether the plaintiff should be granted leave to rely on specific affidavits and issue a subpoena, as well as whether the defendant should be ordered to pay the plaintiff’s costs related to the notice of motion. The legal issues centred around the appropriateness of the requested orders in the context of the reference and the principles governing the allocation of costs in interlocutory proceedings.

The court granted the plaintiff leave to rely on the affidavits of Joanne Lichaa and Aneet Kaur Bhalla, as well as to issue a subpoena to Edward Farah, finding these steps necessary to proceed with the reference. The court also determined that the defendant should pay the plaintiff’s costs associated with the notice of motion, considering the circumstances and the need for efficient management of the proceedings. The court emphasised that the costs should be proportionate and reflect the necessity of the plaintiff’s actions. The orders were made to ensure that the reference could progress in an orderly and just manner, balancing the interests of both parties.

The court ordered that the plaintiff has leave to rely upon the affidavits of Joanne Lichaa and Aneet Kaur Bhalla and to issue a subpoena to Edward Farah. Furthermore, the defendant was ordered to pay the plaintiff’s costs of the notice of motion. The plaintiff was granted liberty to apply for further or other orders on seven days’ notice.

Orders

Orders of the court

1. The plaintiff has leave to rely upon the affidavits of Joanne Lichaa and Aneet Kaur Bhalla made on 27 February 2023 at the reference;

2. The plaintiff has leave to issue a subpoena to Edward Farah to give evidence to the reference;

3. The defendant is to pay the plaintiff’s costs of her notice of motion filed on 17 March 2023 as amended on 31 May 2023;

4. Liberty to apply on 7 days’ notice if further or other orders are required.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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