Rahal v Abedin - [2022] NSWSC 232

Supreme Court

New South Wales

Medium Neutral Citation: Rahal v Abedin [2022] NSWSC 232
Hearing dates: 28 October 2021
Date of orders: 8 March 2022
Decision date: 08 March 2022
Jurisdiction: Common Law
Before: Walton J
Decision:
(1) The motion filed by the defendants on 14 September 2021 is dismissed.
(2) The defendants shall pay the costs of the motion as agreed or, in default, as assessed.

Catchwords:
CIVIL PROCEDURE – default judgment – setting aside – UCPR 36.16 – bona fide defence on merits – explanation of delay – unsatisfactory evidence – no defence on merits or explanation of delay – application refused
CIVIL PROCEDURE – default judgment – setting aside – irregularity in statement of claim – UCPR 36.15 – s 63 Civil Procedure Act – types of irregularities that will necessitate setting aside – omission of material facts necessary to support the pleaded cause of action – no such errors found – application refused

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Arnold v Forsythe [2012] NSWCA 18
Fenato v Chief Commissioner of State Revenue (2010) 78 NSWLR 20; [2010] NSWCA 80

Category: Principal judgment
Parties: Narinder Singh Rahal (First Plaintiff)
Sarojny Rahal (Second Plaintiff)
Mohammad Abedin (First Defendant)
Xiaoyan Tang (Second Defendant)
Representation:
Counsel:
H Durack (Plaintiff)
B Long (Defendant)
Solicitors:
Craig Milne & Company (Plaintiff)
Celtic Legal (Defendant)

File Number(s): 2021/148251
Publication restriction: Nil

Judgment

These proceedings concern an action by the first defendant Mohammad Abedin and the second defendant Xiaoyan Tang, (together “the defendants”) by notice of motion filed on 14 September 2021 (“the defendants’ motion”) to set aside a default judgement entered against them in the sum of $954,065.60 on 2 August 2021 (“the default judgment”).
The contested factual background underpinning the proceedings may be briefly restated as follows.
The first plaintiff is Narinder Singh Rahal. The second plaintiff is Sarojny Rahal, (together “the plaintiffs”). The first and second plaintiffs are married, as are the first and second defendants. All four are friends and have been business associates from time to time.^[1]
1. T21.5-20
On 16 February 2016, the defendants received a loan of $550,000.00 from the plaintiffs (“the first loan”) from the proceeds of sale of the property at X Wiggins Place, Concord (“the Wiggins Place Property”).^[2]
2. Loan Agreement page 2 at [B]
On 20 July 2018, the defendants received a further loan of $203,000.00 from the plaintiffs (“the second loan”) to be used for a deposit for a proposed purchase of X Patricia Street, Mays Hill (“the Patricia Street Property”).^[3]
3. Loan Agreement page 2 at [B]
On 15 July 2019, the defendants received a further cash loan of $200,000.00 from the plaintiffs (“the third loan”) to buy a property in Adelaide (“the Adelaide Property”).^[4]
4. Loan Agreement page 2 at [B]
On 13 July 2020, the parties entered into a loan agreement under which the plaintiffs were described as the lenders and the defendants as the borrowers…

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 Rahal v Abedin

Details

AGLC: Rahal v Abedin [2022] NSWSC 232
Case: [2022] NSWSC 232
Decision Date: 08 March 2022

CaseChat Overview and Summary

The matter of Rahal v Abedin involved a dispute over the setting aside of a default judgment. The respondent, Abedin, sought to overturn the default judgment that had been entered against them by the applicant, Rahal. The case was heard in the Supreme Court of New South Wales. The central issue before the court was whether the respondent had a bona fide defence on the merits or an explanation for the delay in seeking to set aside the judgment, as required by Uniform Civil Procedure Rules 36.15 and 36.16.

The court examined whether the respondent had established a bona fide defence on the merits, which would allow for the setting aside of the default judgment. The court also considered whether the respondent provided an adequate explanation for the delay in applying to set aside the judgment. The court found that the respondent had not provided a satisfactory explanation for the delay, nor did they have a defence on the merits. The court emphasised that the respondent must demonstrate that they have a real prospect of successfully defending the claim, and that the failure to do so is not due to any fault or neglect on their part.

The court determined that the application to set aside the default judgment was without merit and was accordingly dismissed. The court found that the respondent did not establish a bona fide defence on the merits, nor did they provide a satisfactory explanation for the delay. The court concluded that the application to set aside the default judgment was not successful and the default judgment remained in place. The court also noted that there were no irregularities in the statement of claim that would warrant setting aside the judgment.

Orders