Maroubra Road Developments Pty Ltd v Afyouni - [2019] NSWSC 1639

Supreme Court

New South Wales

Medium Neutral Citation: Maroubra Road Developments Pty Ltd v Afyouni [2019] NSWSC 1639
Hearing dates: 8 November 2019
Decision date: 08 November 2019
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1.   Dismiss the cross-claim by the defendants/cross-claimants.
2.   Order judgment in favour of the plaintiff on the plaintiff’s claim for payment of the sum of $269,750.
3.   Order the payment out of court of the sum of $269,750 and any interest thereon to the plaintiff’s solicitor forthwith.
4   Order the defendant/cross-claimants to pay the cross-defendants’ costs up to 25 June 2019 on the ordinary basis and from 25 June 2019 on the indemnity basis.

Catchwords: CIVIL PROCEDURE – Pleadings – whether proposed amended cross-claim meets the requirement for pleadings – whether the proposed amended cross-claim particularised the pleadings clearly and specifically – where serious allegations made such as allegations of threats – held that the proposed amended cross-claim had not been properly pleaded – cross-claim dismissed.
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Uniform Civil Procedure Rules 2005 (NSW), rr 14.14, 14.14(3)
Cases Cited: Banque Commerciale SA (En Liqn) v Akhil Holdings Limited (1990) 169 CLR 279; (1990) HCA 11
Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215
Collier v Country Women’s Association of New South Wales [2017] NSWCA 22
Farah Custodians Pty Ltd v Commissioner of Taxation [2018] FCA 1185
Lay v Pech [2018] NSWSC 460
Macquarie International Health Clinic Pty Ltd v Sydney Local Health District (No 2) [2019] NSWSC 1492
McGuirk v The University of New South Wales [2009] NSWSC 1424
Mitanis v Pioneer Concrete (Vic) Pty Ltd (1997) ATPR 41-591
National Australia Bank Limited v Skoczek [2016] NSWSC 1765
Northam v Favelle Favco Holdings Pty Ltd (Supreme Court (NSW), 7 March 1995, unrep)
Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 3) [2010] FCA 361; (2010) 267 ALR 494
Picone v Velos [2007] FCA 1183
PPK Willoughby Pty Ltd v Roads and Maritime Services [2014] NSWSC 407
Sgro v Australian Associated Motor Insurers Ltd [2015] NSWCA 262
Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1; [2001] 2 All ER 513; [2001] UKHL 16
Wride v Schulze [2004] FCAFC 216
Category: Procedural and other rulings
Parties: Maroubra Road Developments Pty Ltd (Plaintiff)
Hazem Abdallah Afyouni (Defendant)
Representation:
Counsel:
A Cheshire SC
GD McDonald
Solicitors:
Lehman Walsh Lawyers (Plaintiff)
Eden King Lawyers Pty Ltd (Defendant)

File Number(s): 2019/153883
Publication restriction: Nil

Judgment

HER HONOUR: This matter came before me in the applications list on 5 November 2019, in circumstances where the proceedings had been before Kunc J on 4 October 2019 and his Honour had struck out the first statement of cross-claim filed by the defendant (Hazem Afyouni) and a company associated with him, Elite Realty Development Pty Ltd, (together, the cross-claimants) on 25 June 2019.
On that occasion, his Honour made directions for the provision by the cross-claimants to the cross-defendants (Maroubra…

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.

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Details

Case: [2019] NSWSC 1639
Decision Date: 08 November 2019

CaseChat Overview and Summary

Maroubra Road Developments Pty Ltd filed an action against Afyouni in the Supreme Court of New South Wales. The dispute centred around the validity of a proposed amended cross-claim filed by the defendant. The plaintiff alleged that the defendant had failed to properly plead certain allegations, including threats, in the cross-claim. The defendant sought to amend the cross-claim to include these allegations. The court was required to determine whether the proposed amended cross-claim met the requirements for pleadings under the Uniform Civil Procedure Rules 2005 (NSW).

The central legal issue before the court was whether the proposed amended cross-claim had been properly pleaded. Specifically, the court had to consider whether the cross-claim particularised the pleadings clearly and specifically, as required by the rules. The court had to examine whether the defendant had sufficiently outlined the allegations of threats in the proposed amended cross-claim. The court also had to assess whether the proposed amended cross-claim was an attempt to introduce new causes of action that had not been pleaded previously.

In dismissing the cross-claim, the court found that the proposed amended cross-claim had not been properly pleaded. The court held that the defendant had failed to particularise the pleadings clearly and specifically, particularly in relation to the allegations of threats. The court found that the proposed amended cross-claim did not meet the requirements for pleadings under the Uniform Civil Procedure Rules 2005 (NSW). The court further held that the proposed amended cross-claim was an attempt to introduce new causes of action that had not been pleaded previously. The court therefore dismissed the cross-claim.

Orders