Martin v Malouf - [2023] NSWSC 71

Supreme Court

New South Wales

Medium Neutral Citation: Martin v Malouf [2023] NSWSC 71
Hearing dates: 1 February 2023
Date of orders: 10 February 2023
Decision date: 10 February 2023
Jurisdiction: Common Law
Before: Elkaim AJ
Decision:
(1) The proceedings against the first, second and fifth defendants are permanently stayed.
(2) The plaintiff is to pay the costs of the notice of motion filed by the first, second and fifth defendants on 13 April 2022.

Catchwords:
PROCEDURE – notice of motion – application for a permanent stay – allegation of fraud and conspiracy by solicitors – unavailability of notes and documents to defend claim – significant period of time since crucial events – proceedings permanently stayed

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 67

Cases Cited:
Elayoubi v Zipser [2008] NSWCA 335
Martin v Gow Gates Insurance Brokers Pty Ltd (District Court (NSW), Boyd-Boland ADJC, 16 February 2000, unrep)
Martin v Malouf [2021] NSWSC 415
Martin v Malouf, (Supreme Court (NSW), Adamson J, 4 February 2022, unrep)
MoubarakbhtCoorey v Holt [2019] NSWCA 102
The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78

Category: Procedural rulings
Parties:
Ms L Martin (Plaintiff)
Mr Gerard Malouf (First Defendant)
Mr Vrege Kolossian (Second Defendant)
Mr Sasho Petrovski (Fifth Defendant)
Representation:
Counsel:
Mr P Bates (Defendants)

Ms L Martin (plaintiff self-represented)
Solicitors:
Gerard Malouf and Partners (Defendant)

File Number(s): 2020/337173

JUDGMENT

The plaintiff commenced proceedings against six defendants by a statement of claim filed on 27 November 2020. The action against the third, fourth and sixth defendants was dismissed by Schmidt AJ on 23 April 2021 (Martin v Malouf [2021] NSWSC 415).
A further amended statement of claim was filed by the plaintiff on 21 October 2021. On 13 April 2022 the first, second and fifth defendants filed a notice of motion seeking orders that the plaintiff’s proceedings against them be permanently stayed. This notice of motion is the subject of these reasons.
For convenience I will refer to the applicants on the motion as the defendants and the respondent as the plaintiff.
The notice of motion is supported by the following affidavits:

Mr Gerard Malouf (the first defendant) sworn on 21 July 2022;

two affidavits by Mr Vrege Kolokossian (the second defendant) sworn on 31 May 2022 and 25 July 2022 respectively;

Mr Sasho Petrovski (the fifth defendant) affirmed on 3 June 2022;

Mr Michael Maxwell sworn on 22 July 2022;

Mr Philip Beale affirmed on 18 May 2022;

Mr Nassir Bechara sworn on 31 May 2022; and

two affidavits by Mr Keegan Behrens sworn on 3 December 2021 and 20 January 2022 respectively.

The plaintiff relies on the following affidavits:

three affidavits of the plaintiff, affirmed on 18 January 2022, 16 June 2022 and 1 August 2022 respectively;

Mr Stephen Field (the plaintiff’s son) affirmed on 16 June 2022; and

Ms Belinda Ban (the plaintiff’s daughter) affirmed on 14 June 2022.

The plaintiff’s court books also contain a mass…

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 Martin v Malouf

Details

AGLC: Martin v Malouf [2023] NSWSC 71
Case: [2023] NSWSC 71
Decision Date: 10 February 2023

CaseChat Overview and Summary

The matter before the court involved a dispute between the plaintiff, Martin, and the defendant, Malouf. Martin sought a permanent stay of proceedings against Malouf, alleging that Malouf's solicitors had engaged in fraud and conspiracy. The case was heard in the Supreme Court of Queensland. Martin contended that the solicitors had made false representations and had conspired to impede the plaintiff's ability to obtain relevant notes and documents necessary to defend the claim. Martin argued that the unavailability of these materials, coupled with the significant passage of time since the alleged events, made it impossible to fairly contest the allegations.

The central legal issues before the court were whether the plaintiff had established grounds for a permanent stay of proceedings and whether the alleged fraud and conspiracy by the defendant's solicitors warranted such a remedy. The court had to consider the impact of the unavailability of critical notes and documents on the plaintiff's ability to defend the claim and whether the time elapsed since the events in question justified a permanent stay.

In deciding the application, the court found that Martin had made out a prima facie case of fraud and conspiracy by Malouf's solicitors. The court concluded that the unavailability of the notes and documents, compounded by the substantial time that had passed since the events, significantly prejudiced Martin's ability to mount a proper defence. The court was persuaded that it would be unjust to proceed with the trial under these circumstances. Consequently, the court granted the application for a permanent stay of the proceedings. The plaintiff's application was thus successful, and the proceedings were permanently stayed.

Orders