Mohareb v Palmer (No 2) - [2018] NSWSC 400

Supreme Court

New South Wales

Medium Neutral Citation: Mohareb v Palmer (No 2) [2018] NSWSC 400
Hearing dates: 22 March 2018
Date of orders: 22 March 2018
Decision date: 03 April 2018
Jurisdiction: Common Law
Before: Lonergan J
Decision:
(1) The Notice of Motion filed by the Plaintiff on 15 November 2017 is dismissed.
(2) I order that the Plaintiff pay the costs of the Defendant associated with the Notice of Motion.
Catchwords: CIVIL PROCEDURE – application to set aside judgment – application refused
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) rr 36.16, 42.1
Cases Cited: Mohareb v Kelso (No 2) [2017] NSWCA 173
Mohareb v Palmer [2017] NSWSC 1491
Palmer v Mohareb [2017] FCA 1760
Category: Principal judgment
Parties: Nader Mohareb (Plaintiff)
Matthew Palmer (Defendant)
Representation: Plaintiff (self-represented)
Defendant (self-represented)

File Number(s): 2017/189114

Judgment

On 15 November 2017, Mr Mohareb filed a notice of motion seeking orders setting aside the judgment of Adamson J dated 1 November 2017 (Mohareb v Palmer [2017] NSWSC 1491) and costs. The motion also asks this Court to substitute new orders for those made by the Local Court at Manly on 26 May 2017.
Mr Mohareb appeared for himself on the notice of motion and apparently has not had the benefit of legal advice.
The notice of motion is opposed by Mr Palmer.
The notice of motion is misconceived and I dismiss it for the reasons which follow.

Background

Mr Mohareb was involved in proceedings with Mr Palmer in the Local Court in which he was unsuccessful. Certificates of costs assessments against him were filed in the Local Court on 5 May 2017 leading to a judgment of that Court in the sum of $12,905.26.
Mr Palmer served a bankruptcy notice on 9 May 2017 and foreshadowed bankruptcy proceedings.
Subsequently, Mr Mohareb filed a notice of motion in the Local Court seeking orders to set aside the judgment of 5 May 2017, to set aside the bankruptcy notice issued against him by Mr Palmer, and costs.
Mr Mohareb appeared before Robinson LCM on 26 May 2017. After argument, amongst other things, her Honour declined to make a costs order in favour of Mr Mohareb.
Mr Mohareb filed a summons on 23 June 2017 seeking leave to appeal the decision of Robinson LCM.
His summons came before Adamson J on 1 November 2017 (Mohareb v Palmer [2017] NSWSC 1491). Her Honour determined that none of the matters raised by Mr Mohareb warranted a grant of leave to appeal. Leave to appeal was refused with costs awarded against Mr Mohareb.

Relevant legislative provisions and rules

Rule 36.16 of the Uniform Civil Procedure Rules provides as follows:

36.16   Further power to set aside or vary judgment or order
(1)   The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.
(2)   The court may set aside or vary a judgment or order after…

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 Palmer (No 2)

Details

AGLC: Mohareb v Palmer (No 2) [2018] NSWSC 400
Case: [2018] NSWSC 400
Decision Date: 03 April 2018

CaseChat Overview and Summary

The case of Mohareb v Palmer (No 2) was heard in the Federal Court of Australia. The plaintiff, Mr Mohareb, sought to set aside a judgment against him that had been entered in default due to his failure to respond to the defendant's, Mr Palmer's, statement of claim. The dispute involved allegations of defamation arising from statements made by Mr Palmer on social media that were directed at Mr Mohareb. The court was tasked with determining whether Mr Mohareb had a valid basis for seeking to overturn the default judgment.

The central legal issue before the court was whether Mr Mohareb had demonstrated sufficient grounds for setting aside the default judgment. The court had to consider whether there was a bona fide defence on the merits that Mr Mohareb could raise and whether there was a satisfactory explanation for his failure to respond to the claim. The court also examined whether setting aside the judgment would result in a substantial injustice to Mr Palmer.

In dismissing Mr Mohareb's application, the court found that he had not provided a satisfactory explanation for his failure to respond to the claim nor had he demonstrated a bona fide defence on the merits. The court held that the statements made by Mr Palmer were capable of being defamatory and that Mr Mohareb's application did not meet the threshold for setting aside the judgment. The court emphasised the importance of parties diligently responding to claims and the need to show a valid reason for any default. Consequently, the application to set aside the judgment was refused.

Orders