Mahommed v Unicomb (No 3) - [2020] NSWSC 1312

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:
L Smits (Solicitor) (First Plaintiff)
W Honner (Liquidator of Second Plaintiff)
D Allen (Counsel) (First and Second Defendant)
Solicitors:
L Smits (First Plaintiff)
Kekatos Lawyers (First and Second Defendant)

File Number(s): 2016/53923
Publication restriction: Nil

Judgment

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.
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.
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.
The orders by Robb J followed lengthy interlocutory proceedings and the delivery of two judgments as I…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mahommed v Unicomb (No 3)

Details

AGLC: Mahommed v Unicomb (No 3) [2020] NSWSC 1312
Case: [2020] NSWSC 1312
Decision Date: 29 September 2020

CaseChat Overview and Summary

The case of Mahommed v Unicomb (No 3) involved the plaintiff seeking to set aside a dismissal of his claims by another judge. The plaintiff had previously failed to re-plead his claims in accordance with the directions given. The court had to determine whether the dismissal of the plaintiff's claims should be set aside due to irregularity, illegality, or lack of good faith. The matter was heard in the Supreme Court of Queensland.

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