Ratul v Islam (No 2) - [2022] NSWSC 1470

Supreme Court

New South Wales

Medium Neutral Citation: Ratul v Islam (No 2) [2022] NSWSC 1470
Hearing dates: 19 October 2022
Date of orders: 19 October 2022
Decision date: 19 October 2022
Jurisdiction: Equity - Duty List
Before: Henry J
Decision:
Refuse to grant the relief sought in defendant’s notice of motion and make limited interlocutory orders. See [41]

Catchwords:
CIVIL PROCEDURE – Interlocutory application by defendant – where order sought to restrain the second plaintiff from making any payment to contractor – where order sought for commencement of payment of Director’s allowance of $10,000 in amount by second plaintiff to defendant – where order sought for recommencement of payment of 50% trail income from third party to defendant – whether serious question to be tried established – orders refused in terms sought but limited orders made in relation to notice and types of payment to be made to contractor – costs of first plaintiffs successful injunctions applications ordered to be paid by defendant

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Corporations Act 2001 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Wang v Cai (No 2) [2021] NSWSC 1268

Category: Procedural rulings
Parties: Abu Walid Ratul (First Plaintiff)
Australian Real Estate Relation Pty Ltd ACN 619 522 182 (Second Plaintiff)
Md Rajibul Islam (Defendant; Self-Represented)
Representation:
Counsel:
J Raftery (Plaintiffs)
Solicitors:
Mitry Lawyers (Plaintiffs)

File Number(s): 2022/00277860
Publication restriction: Nil

JUDGMENT – EX TEMPORE (REVISED)

The first plaintiff, Mr Ratul and the defendant, Mr Islam, are directors of and equal shareholders in the second plaintiff, Australian Real Estate Relation Pty Ltd (Company), which operates a real estate agency business pursuant to a Raine & Horne franchise agreement.
In these proceedings, which were commenced by Mr Ratul on an urgent basis last month, Mr Ratul sought and was granted mandatory injunctions on two occasions requiring Mr Islam to remove a stop placed on four bank accounts of the Company and, on 12 October 2022, an interlocutory injunction restraining Mr Islam from placing further stops on four of the Company's bank accounts, until further order of the Court. The background to the grant of the injunctions is set out in my ex tempore reasons dated 12 October 2022 (Ratul v Islam, 12 October 2022, unrep) (12 October Judgment).
In the 12 October Judgment, I noted that an injunction requiring Mr Islam to remove a stop on the Company bank accounts had been made by Kunc J on 16 September 2022 (which was complied with) and that the injunctions on 12 October 2022 (after another stop had been placed on the accounts by Mr Islam) were granted on the basis of the usual undertaking as to damages and an undertaking given by Mr Ratul that he would operate the Company bank accounts in connection with the business of the Company in and for the purposes of the ordinary course of business, as well as an order made that day that Mr Ratul and the Company…

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 Ratul v Islam (No 2)

Details

AGLC: Ratul v Islam (No 2) [2022] NSWSC 1470
Case: [2022] NSWSC 1470
Decision Date: 19 October 2022

CaseChat Overview and Summary

The interlocutory application before the court was brought by the defendant, seeking an order to restrain the second plaintiff from making any payment to a contractor, as well as an order for the second plaintiff to commence payment of a Director’s allowance to the defendant, and for the recommencement of payment of 50% of the trail income from a third party to the defendant. The court was required to determine whether the defendant had established a serious question to be tried, which would warrant the making of such orders. The legal issues included the validity of the defendant's claim that the second plaintiff was not entitled to make the proposed payments, and whether the defendant was entitled to the allowances sought. The court examined the evidence and arguments presented by both parties, considering the merits of the case and the likelihood of the defendant succeeding at trial. After careful consideration, the court determined that the defendant had not established a serious question to be tried in its entirety, and therefore refused the orders in the terms sought. However, the court made limited orders in relation to the notice and types of payment to be made to the contractor. Additionally, the court ordered that the costs of the first plaintiffs' successful injunction applications be paid by the defendant.

Orders