Murphy v Zeitouneh
[2015] NSWSC 876
•02 July 2015
Supreme Court
New South Wales
Medium Neutral Citation: Murphy v Zeitouneh [2015] NSWSC 876 Hearing dates: 2 July 2015 Decision date: 02 July 2015 Jurisdiction: Common Law Before: Adamson J Decision: 1. The proceedings be dismissed.
2. Order the plaintiff to pay the defendants’ costs of the proceedings, including the costs of the notice of motion filed on 24 June 2015.Catchwords: PRACTICE AND PROCEDURE - application for summary dismissal – no arguable cause of action disclosed – proceedings dismissed – alleged status of plaintiff as Messiah no exception to indefeasibility Legislation Cited: Real Property Act 1900 (NSW)
Uniform Civil Procedure Rules 2005 (NSW) r 13.4, r 14.28, r 17.7Category: Procedural and other rulings Parties: David Gregory Murphy (Plaintiff)
Habib and Fatima Zeitouneh (1st Defendants)
Zegna Holdings (2nd Defendant)Representation: Counsel:
Solicitors:
In person (Plaintiff)
J Horowitz (1st and 2nd Defendants)
Swaab Attorneys (1st and 2nd Defendants)
File Number(s): 2014/272694
Judgment: EX TEMPORE
Introduction
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By statement of claim filed on 16 September 2014, the plaintiff, David Murphy, commenced proceedings Habib and Fatima Zeitouneh (first defendants) and Zegna Holdings Pty Limited (second defendant). By amended statement of claim filed on 25 May 2015, the plaintiff sought an order for possession of property known as 2A Cannon Street Stanmore (the Property) against the second defendant.
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The defendants have moved, by motion filed on 24 June 2015, for an order pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that the proceedings be dismissed. In the alternative, the defendants seek an order pursuant to UCPR 14.28(1) that the amended statement of claim be struck out. They also seek an order for the costs of the proceedings and the notice of motion.
The evidence
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Mr Horowitz, who appeared on behalf of the defendants/applicants, relied on a title search of the Property, which was conducted on 29 May 2015. It records that Zegna Holdings Pty Limited, the second defendant, is the sole registered proprietor of the Property.
The pleadings
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The pleading is dense and runs for a number of pages. However, its substance can be summarised as follows. At some time before the Property was transferred to the second defendant, it was used as a church. The plaintiff claims to be entitled to that church by reason of an alleged wager. The plaintiff also alleges that, because the Property was used as a church, title to the Property lies with the Messiah. In the amended statement of claim, the plaintiff claims to be the Messiah and therefore to be entitled to the Property. He also relies on admissions, said to have been made by the defendants, that he is the Messiah, and that they do not have title to the Property. The plaintiff refers in the pleading to various notices to admit facts which he alleges were served on the defendants, and which he alleges bind the defendant because they did not dispute those facts.
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There are several notices to admit facts referred to in the pleadings. Nonetheless, each and every one of those notices to admit facts are dated either on the date on which these proceedings were commenced, or a date prior to commencement. Accordingly, those notices can have no effect on the proceedings. There was no obligation on the defendants to respond with a notice disputing facts.
The parties’ submissions
The defendants’/ applicants’ submissions
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Mr Horowitz submitted that the second defendant was the registered proprietor of the Property. He contended that there is no known exception to the principles of indefeasibility contained in the Real Property Act 1900 (NSW) which would accord any priority to the plaintiff’s alleged interest, even if he were the Messiah. He also contended that the pleadings were unintelligible. Accordingly, Mr Horowitz submitted that the proceedings ought be dismissed or, alternatively, the pleading struck out.
The plaintiff’s submissions
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Mr Murphy, the plaintiff, who appeared on his own behalf before me today, referred to a notice of motion which he filed in the proceedings in October 2014 and sought to move on that notice of motion. In the notice of motion, he claimed to be entitled to judgment on admissions as a result of notices to admit facts which were alleged to have been served on the defendants. As no notice had been given to the defendants of that motion, I did not permit him to proceed on that notice of motion. Nonetheless, matters which were raised in that notice of motion have also been raised by Mr Murphy before me today. The question of the efficacy of notices to admit facts has already been addressed above.
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In substance, Mr Murphy claims to be entitled to a judgment against the defendants on admissions pursuant to UCPR 17.7.
Consideration
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The pleading, in my view, discloses no cause of action. It is vexatious and almost unintelligible, except to the extent to which I have managed to glean from it the narrative which is set out above. The defendants are entitled to have the proceedings against them dismissed. There is no arguable cause of action. The proceedings are vexatious. In all the circumstances, I am satisfied that it is appropriate that the proceedings be dismissed and that the plaintiff pay the defendants’ costs of the proceedings.
Orders
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I make the following orders:
The proceedings be dismissed.
Order the plaintiff to pay the defendants’ costs of the proceedings, including the costs of the notice of motion filed on 24 June 2015.
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Decision last updated: 03 July 2015
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