Mohareb v Jankulovski - [2014] NSWSC 745

Supreme Court

New South Wales

Medium Neutral Citation: Mohareb v Jankulovski [2014] NSWSC 745
Hearing dates: 3 June 2014
Decision date: 10 June 2014
Before: Harrison J
Decision:
1. Order that the proceedings be listed for mention before me at 9.30 am on Tuesday 17 June 2014.
2. Reserve costs.

Category: Procedural and other rulings
Parties: Nader Mohareb (Plaintiff)
Emil Jankulovski (First Defendant)
Emil & Sons Pty Ltd t/as Inducta Engineering (Second Defendant)
Representation: Counsel:
C J Dibb (Plaintiff)
M Dulhunty (Defendants)
Solicitors:
C Jankulovska (Defendants)

File Number(s): 2012/68684
Publication restriction: Nil

Judgment

HARRISON J: On 17 April 2014 I published my judgment in this matter dealing with an application by the defendants for an order that the proceedings be dismissed for want of due despatch: see Mohareb v Jankulovski [2014] NSWSC 451. I did not at that time deal with a claim made by the defendants framed in their notice of motion filed on 4 March 2014 as follows:

"(d) That the plaintiff return forthwith the dongles handed to him by the first defendant on 4 February 2013."

The evidence upon which the defendants relied when the matter came before me for consideration on 14 April 2014 was contained in the affidavit of Cvetanka Jankulovska sworn 4 March 2014. The only reference in that affidavit to the dongles that are at the heart of the present application was contained in a letter dated 12 July 2013 sent by Ms Jankulovska to the plaintiff in the following terms:

"I refer to the judgment of Harrison AsJ of 27 June 2013.

You are required to return 2 dongles with Inducta Engineering Software which were given to you on 4 February 2013.

If you do not return the dongles within 7 days Court order will be sought to enforce the above judgment."

The judgment to which that letter refers is her Honour's judgment in Mohareb v Jankulovski [2013] NSWSC 850. The only references to dongles in that decision appear in [22] and [37] as follows:

"[22] It is common ground that the following conversation then took place. Mr Mohareb says that Mr Jankulovski replied 'I know, I know... but this time I really would like to resolve it once and for all. Look, to prove it to you I will give you right now without reservation on my part two licences to all of Inducta Engineering software.' While saying this Mr Jankulovski turned to his computer, connected the first of the two licence dongles to his computer, brought up the list of all the Inducta Engineering software on his computer screen and ticked all the boxes next to each of the Inducta Engineering software and authorised all the licences to the connected dongle. He then repeated this whole process for the second licence dongle ... Next, he connected a USB storage device to his computer and transferred to it copies of each of the Inducta Engineering programs. He then handed Mr Mohareb the two dongles and the USB…

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 Mohareb v Jankulovski

Details

AGLC: Mohareb v Jankulovski [2014] NSWSC 745
Case: [2014] NSWSC 745
Decision Date: 10 June 2014

CaseChat Overview and Summary

Nader Mohareb commenced proceedings against Emil Jankulovski and his company Inducta Engineering. The plaintiff sought an order for specific performance of an agreement by way of settlement of the proceedings. The defendants sought an order that the proceedings be dismissed for want of due despatch, and also that the plaintiff return two dongles handed to him on 4 February 2013. The primary legal issue before the court was whether the plaintiff was entitled to retain the two dongles that were handed to him on 4 February 2013. The court found that the defendants were entitled to the return of the dongles, and that the plaintiff should return them to the defendants within 7 days. The court listed the matter for mention on Tuesday 17 June 2014, reserving consideration of the costs of the proceedings relating to the disputed dongles until then.

Justice Harrison found that the plaintiff had accepted that he was to return the two "settlement dongles", and that the defendants were entitled to have the items returned to them forthwith. The court was not persuaded by the plaintiff's latter day attempt to qualify the force or practical effect of that admission by insisting that his commercial or professional position may be in peril because the defendants could take the view that he was "no longer regarded... as being entitled to have any dongle at all". The court found this to be a transparently disingenuous ploy to frustrate the defendants' conceded right to have the items concerned returned to them. The court concluded that the defendants were entitled to the return of the dongles that were handed to the plaintiff on 4 February 2013, and that the plaintiff should return them to the defendants within 7 days. The court reserved consideration of the costs of the proceedings relating to the disputed dongles until the matter was listed for mention on Tuesday 17 June 2014.

Orders