Nile Romance Pty Ltd v Alnabarawi

[2009] VCC 1312

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION

COMMERCIAL LIST	Case No.CI-04-05460
NILE ROMANCE PTY LTD	First-named Plaintiff
(ACN 104 455 601)
and
MOHAMED ABDEL-RAZEK	Second-named Plaintiff
v
SALAH ALNABARAWI	First-named Defendant
and
JYILAN ALNABARAWI	Second-named Defendant
and
HYTHAM ALNABARAWI	Third-named Defendant

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JUDGE:	HIS HONOUR JUDGE GINNANE
WHERE HELD:	Melbourne
DATE OF HEARING:	6 and 26 October 2009
DATE OF JUDGMENT:	30 October 2009 (publications of reasons)
CASE MAY BE CITED AS:	Nile Romance Pty Ltd & Anor v Alnabarawi & Ors
MEDIUM NEUTRAL CITATION:	[2009] VCC 1312

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REASONS FOR JUDGMENT

Catchwords- Practice and procedure – Trial – Absence of party – Judgment reserved- Subsequent listing of case for further hearing - Application by party not appearing at trial to have case reheard or to participate in further hearings--- Power of Court to impose conditions- History of proceeding including previous adjournments sought by party-County Court Civil Procedure Rules 2008 – Rule 1.14 (2); 49.02

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J Samargis	Max Frankel & Co
For the Defendants	Mr I Khan, Solicitor	Starnet Legal
HIS HONOUR:

1          These are the reasons for the orders that I made at the conclusion of the hearing on 26 October 2009.

2          This matter was commenced as long ago as 2004. It was fixed for hearing on 4 February 2009. On that date the defendants persuaded the Court to vacate the trial date and the defendants were ordered to pay the plaintiffs’ costs of the day and costs thrown away by reason of the vacating of the trial date. Those costs have not yet been paid.

3          On 2 April 2009, when the defendants were represented, the matter was fixed for hearing on 15 September 2009. The matter came on for hearing before me on 15 September 2009. The defendants were not represented. I heard evidence on that day and the plaintiffs presented their case. I reserved my decision.

4          On considering the plaintiff’s case, various issues arose that I considered required the opportunity for further submissions. I therefore relisted the matter and gave notice to the parties.

5          The matter was relisted on 6 October 2009 when the first defendant attended. He said that he had not received notice of the hearing of 15 September 2009. I directed the defendants to file an application and an affidavit explaining why they were not in attendance on 15 September 2009, and setting out their defence on the merits. They have filed an affidavit dated 18 October 2009. On 6 October 2009 I raised with counsel for the plaintiffs the various issues about which I wished further submissions and provided to the parties a copy of the questions that I wished to have addressed.

6          The matter was relisted again on 26 October 2009. The defendants were represented by Mr Khan, solicitor. He had been engaged the previous Friday. The plaintiffs were represented by Mr Samargis of counsel. The defendants sought to have the case reheard, alternatively to be permitted to participate in the remainder of the hearing. The argument as to what should occur in the case took all day.

7          The plaintiffs cross-examined the first defendant, Mr Salah Alnabarawi, on his affidavit and called his former solicitor, Mr Randles to give evidence.

8          At the end of the evidence I had some doubt as to whether the first defendant had proved that he was unaware of the hearing date. However, I decided, subject to the terms that I then announced, to give the defendants one last opportunity to participate in this litigation. I did that because it seemed to me that the first defendant, soon after he became aware of the hearing fixed for 6 October 2009, took steps demonstrating his desire to be involved in the litigation. In addition, there was the difficulty caused by my giving the opportunity for further submissions about particular issues and the issue of excluding the defendants from further hearings at which those submissions might be delivered if they wished to participate.

9          There was not much said about whether the defendants had an arguable defence to present. The affidavit filed by the first defendant makes brief reference to this matter. It would be inappropriate for me to express any final view about possible defences. Doing the best I could with the material that has been filed, it appears that the defendants may have some arguable response to at least some part of the plaintiffs’ claim and therefore there was a reason for permitting the defendants to participate in any further hearing of the proceeding.

10         I considered that I had power under Rule 49.02, or under the power of the Court to control its own procedures, to allow the defendants to participate in the hearing either by re-hearing the case or by some other means. I also considered that under Rule 1.14 (2) I had power to impose conditions upon such involvement.

11        I concluded that there was force in the submissions put on behalf of the plaintiffs that they had suffered prejudice by the way in which this case had progressed. I have already set out some of what has occurred this year. The plaintiffs also pointed to the failure of the defendants to provide an accountant’s report, as they submitted had been suggested by the Court in February 2009.

12        The plaintiffs no doubt have incurred considerable expense in the preparation for the hearing in February 2009 and the presentation of their case in September 2009. It seemed to me to be unfair that their costs in that regard should not be paid if the defendants were to be given yet a further opportunity to participate in the proceeding, which of course will further delay its conclusion.

13        Counsel for the plaintiffs asked me, if I were minded to give the defendants a further opportunity to participate in the proceedings, to order that they pay the sum of $100,000 into Court in respect of the costs that the plaintiffs have incurred and may incur. I am not prepared to order that sum, but I do consider that I have power to and should order that the defendants pay some sum into Court in respect of the costs thrown away by the plaintiffs, which the defendants have been ordered to pay. I will permit the plaintiffs to apply to draw down that sum in respect of costs’ orders that have been made in their favour. Doing the best I can, and considering the estimate of costs put on behalf of the plaintiffs, I have decided that the sum of $30,000 is an appropriate figure. I therefore made the orders that have been distributed to the parties.

14        If the sum of $30,000 is paid on or before 18 November 2009, then I will permit the defendants to have the case re-heard. If it is not paid then I will have to consider what further involvement the defendants will be permitted to have in the proceeding.

15        In taking the steps I have I have had regard to the prejudice litigants face if the resolution of cases is unjustifiably lengthened, particularly where one side has been involved in causing that lengthening. In this regard, I refer to the recent decision of the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 83 ALJR 951 and the need wherever possible for the timely disposal of proceedings.

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