Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Mahommed v Unicomb (No 3) [2020] NSWSC 1312 Hearing dates: 7 August 2020; further written submissions ended 25 August 2020 Date of orders: 29 September 2020 Decision date: 29 September 2020 Jurisdiction: Equity Before: Parker J Decision: See [136]-[137]
Catchwords: JUDGMENTS AND ORDERS — amending, varying and setting aside — as if judgment had not been entered — irregularity, illegality or lack of good faith —order for dismissal of claims by another judge following failure re-plead in accordance with directions — order not appealed — set-aside application dismissed
Legislation Cited: Civil Procedure Act 2005 (NSW), s 63
District Court Rules 1973 (NSW), Pt 31, r 12A
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16
Cases Cited: AutodeskInc v Dyason (No 2) (1993) 176 CLR 300
Bailey v Marinoff (1971) 125 CLR 529
Burrell v The Queen (2008) 238 CLR 218
Clone Pty Ltd v Players Pty Ltd (2018) 264 CLR 165
Coles v Bourke (1987) 10 NSWLR 429
Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126
DPP v Gerathy [2000] NSWSC 228
In the Will of Gilbert (1966) 46 SR (NSW) 318
Mahommed v Unicomb [2017] NSWCA 65
Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009) 78 NSWLR 190
Category: Procedural rulings Parties: Peter Mahommed (First Plaintiff)
Loire Consultants Pty Ltd (Second Plaintiff)
Pamela Unicomb (First Defendant)
Greenhills Securities Pty Ltd (Second Defendant)Representation: Advocates:
Solicitors:
L Smits (Solicitor) (First Plaintiff)
W Honner (Liquidator of Second Plaintiff)
D Allen (Counsel) (First and Second Defendant)
L Smits (First Plaintiff)
Kekatos Lawyers (First and Second Defendant)
File Number(s): 2016/53923 Publication restriction: Nil
Judgment
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Before the Court is an application by way of notice of motion. The first plaintiff seeks to set aside an order which dismissed his claims against the first defendant. The order was made last year by Robb J. The notice of motion seeks other orders but the applications cannot succeed unless the dismissal order is set aside.
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The proceedings concern the assets and affairs of a trust called the Lovedale Ranch Unit Trust. The Trust was constituted by deed of trust dated 1 September 2009. It was a vehicle for investment by unit holders in a property at Lovedale Road, Allandale. Allandale is in the Hunter region of NSW. The trustee of the trust was, at the relevant time, Loire Consultants Pty Ltd (“Loire”). Loire was initially the third defendant. It was later removed as a defendant and joined as the second plaintiff.
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Loire is now in liquidation. It had previously been, since August 2014, controlled by Peter Shah Mahommed, the first plaintiff. He claims to enforce causes of action of Loire as assignee under a deed of assignment dated 12 November 2015. The validity of the assignment purportedly effected by the deed is apparently in dispute.
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The orders by Robb J followed lengthy interlocutory proceedings and the delivery of two judgments as I…
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- AGLC
- Mahommed v Unicomb (No 3) [2020] NSWSC 1312
- Case
- [2020] NSWSC 1312
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the dismissal of the plaintiff's claims was irregular, illegal, or done in bad faith. The court also considered whether the order for dismissal was an appropriate exercise of the court's discretion. The plaintiff argued that the dismissal was irregular and in bad faith because the judge who made the order had a conflict of interest. The defendant argued that the dismissal was a proper exercise of the court's discretion.
The court held that the dismissal of the plaintiff's claims was not irregular, illegal, or done in bad faith. The court found that the judge who made the order did not have a conflict of interest and that the dismissal was a proper exercise of the court's discretion. The court held that the plaintiff had not shown any grounds for setting aside the dismissal of his claims. The court dismissed the application to set aside the dismissal of the plaintiff's claims.
Orders
Orders of the court
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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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