APPEALS – appeal from Local Court to Supreme Court – proceedings for recovery of $30,000 – where defendant loaned money to his first cousin – cousin asserts third party borrowed money and ownership of a BMW X6 was transferred as security – where cousin was unrepresented litigant – cousin subpoenaed car registration documents – subpoenaed documents show ownership was transferred to the defendant four months before the loan was made – registration documents not tendered at trial – Magistrate gave judgment against cousin – whether Magistrate denied procedural fairness by not facilitating tender of the registration documents – whether failure to tender documents deprived cousin the possibility of a successful outcome – questions of fact – where Magistrate had explained the procedure for tendering documents and asked what material was to be tendered – held Magistrate was not obliged to say anything further – no denial of procedural fairness – subpoenaed documents inconsistent with BMW being provided as security – evidence overwhelmingly supported defendant’s case – no substantial miscarriage or wrong – grounds of appeal rejected – summons dismissed
Solicitors: Crimcorp Defence Lawyers (Plaintiff) Abbas and Co Lawyers (Defendant)
File Number(s):
2023/172383
Publication restriction:
Nil
Decision under appeal
Court or tribunal:
Local Court of NSW
Jurisdiction:
Common Law
Citation:
Nil
Date of Decision:
14 April 2023
Before:
Magistrate Walsh
File Number(s):
2023/172383
Judgment
The present defendant, Bass Khalil, commenced proceedings in the Local Court on 10 November 2020, claiming $30,000 which he alleged was a loan he had made to Wassim Naboulsi, the present plaintiff. To avoid confusion, I will refer to the parties by their names.
The loan was alleged to have been…
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.
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AGLC
Naboulsi v Khalil [2024] NSWSC 177
Case
[2024] NSWSC 177
Decision Date
CaseChat Overview and Summary
In Naboulsi v Khalil, the dispute revolved around a debt of $30,000, which the plaintiff, Khalil, sought to recover from the defendant, Naboulsi. The case was initially heard and determined in the Local Court of New South Wales. The plaintiff claimed that the defendant had borrowed this sum and had provided a BMW X6 as security. The defendant, however, argued that he had lent the money to the plaintiff's cousin, who subsequently transferred ownership of the BMW to him prior to the loan. The plaintiff, who was an unrepresented litigant, sought to subpoena car registration documents to support his claim. These documents were eventually subpoenaed but were not tendered during the trial, leading to a judgment against him. The plaintiff appealed to the Supreme Court, arguing that the Local Court Magistrate had denied him procedural fairness by not facilitating the tender of these registration documents, and that the failure to tender these documents had deprived him of a successful outcome.
The primary legal issues before the court were whether the Local Court Magistrate had denied procedural fairness by not facilitating the tender of the registration documents and whether the failure to tender these documents deprived the plaintiff of a successful outcome. The court considered whether the Magistrate should have said anything further beyond explaining the procedure for tendering documents and asking what material was to be tendered. The court also examined whether the subpoenaed documents were inconsistent with the BMW being provided as security and whether the evidence overwhelmingly supported the defendant's case. Ultimately, the court determined that the Magistrate was not obliged to say anything further and that there was no denial of procedural fairness. The subpoenaed documents were inconsistent with the BMW being provided as security, and the evidence overwhelmingly supported the defendant's case, leading to a dismissal of the appeal.
In dismissing the appeal, the court found that the evidence overwhelmingly supported the defendant's case. The registration documents, which were subpoenaed but not tendered, showed that the BMW was transferred to the defendant four months before the loan was made. This fact undermined the plaintiff's claim that the BMW was provided as security for the loan. The court concluded that there was no substantial miscarriage or wrong in the Local Court's proceedings. The grounds of appeal were rejected, and the summons was dismissed.