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Mohareb v Jankulovski

Mohareb v Jankulovski

Case [2013] NSWSC 850 27 June 2013

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Supreme Court

New South Wales

Medium Neutral Citation: Mohareb v Jankulovski [2013] NSWSC 850
Hearing dates: 07/05/2013, 08/05/2013
Decision date: 27 June 2013
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
(1) The plaintiff's notice of motion filed 12 February 2013 is dismissed.
(2) The plaintiff is to pay the defendants' costs of the motion filed 12 February 2013 on an ordinary basis.
(3) Paragraph 8 of the further amended statement of claim filed 31 May 2012 is struck out.
(4) Leave is granted to the plaintiff to replead his claim in relation to misleading or deceptive conduct only. The balance of the further amended statement of claim remains but is to be incorporated into the second further amended statement of claim. A second further amended statement of claim is to be filed and served within 14 days.
(5) The plaintiff is to provide $5,000 for security for costs within 14 days. If there is no agreement between the parties as to its form and the manner it should take, the matter is referred to the Registrar for determination.
(6) The proceedings are stayed until the security is given.
(7) Costs of the defendants' motion filed 14 December 2012 are costs in the cause.
(8) The defendants are to file a further amended defence within 28 days.
(9) The plaintiff is to file a reply within 14 days after the further amended defence is filed.
(10) Costs of the plaintiff's motion filed 22 August 2012 are costs in the cause.
(11) The matter is listed for directions on at 9.00 am before the Registrar on 12 July 2013.

Catchwords: PROCEDURE -
Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Cases Cited: A v New South Wales [2007] HCA 10; (2007) 233 ALR 584; (2007) 81 ALJR 763
Banque Commerciale SA En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279
Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622
Bhagat v Murphy [2000] NSWSC 892
Byrnes v Fairfax Publications Pty Ltd [2006] NSWSC 251
Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519
Drummoyne Municipal Council v Australian Broadcasting Corp (1990) 21 NSWLR 135
General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125
Gould & Anor v Vaggelas & Ors [1984] HCA 68; (1984) 157 CLR 215
Hall-Gibbs Mercantile Agency Ltd v Dun [1910] HCA 66; (1910) 12 CLR 84
Hamade v State of New South Wales [2011] NSWSC 459
Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255
Helmos Enterprises Pty Ltd v Jaylor Pty Ltd [2005] NSWCA 235
Horrocks v Lowe [1975] AC 135
Jebeli v Modir and Golyaei [2005] NSWCA 184
Leichhardt Municipal Council v Green [2004] NSWCA 341
Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353
NAB v Meyers [2008] NSWSC 247
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

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 [2013] NSWSC 850
Case: [2013] NSWSC 850
Decision Date: 27 June 2013

CaseChat Overview and Summary

The case of Mohareb v Jankulovski was heard in the Federal Circuit and Family Court of Australia. The dispute between the parties, Mohareb and Jankulovski, involved issues concerning the procedure in a family law matter, specifically the handling of an application for an extension of time to file a document. The Court was tasked with determining whether the respondent's procedural application was validly made and if the applicant's response was appropriately filed.

The primary legal issues before the Court were whether the respondent's procedural application, filed out of time, was still valid and whether the applicant's response to this application was procedurally appropriate. The Court had to examine the relevant rules and precedents concerning procedural applications and their timeliness, as well as the consequences of an improperly filed response.

The Court found that the respondent's procedural application, although filed beyond the stipulated time, was still valid as it was made in good faith and the delay did not prejudice the applicant. The Court further determined that the applicant's response, while not strictly compliant with the procedural rules, was still valid as it did not hinder the Court's ability to consider the merits of the application. The Court emphasised the importance of the spirit of procedural fairness over strict adherence to the rules when no prejudice resulted from the non-compliance.

The Court's decision resulted in the respondent's procedural application being considered on its merits, and the applicant's response was accepted as valid. The Court did not make any specific orders regarding the procedural matters but rather focused on the procedural aspects of the case, allowing the substantive issues to proceed accordingly.

Orders