Reliance Financial Services Aust Pty Ltd v Assaf - [2022] NSWSC 1061

Supreme Court

New South Wales

Medium Neutral Citation: Reliance Financial Services Aust Pty Ltd v Assaf [2022] NSWSC 1061
Hearing dates: 4 August 2022
Date of orders: 4 August 2022
Decision date: 04 August 2022
Jurisdiction: Equity
Before: Henry J
Decision:
Direct that the first defendant give evidence by audio-visual link, subject to conditions.

Catchwords:
PRACTICE AND PROCEDURE – contested application for first defendant to give evidence by audio-visual link from Lebanon – where first defendant does not wish to travel to Australia because of the risks posed by COVID-19 and because he is the carer for his ill father who resides in Lebanon – application granted on conditions

Legislation Cited:
Competition and Consumer Act 2010 (Cth), Sch 2
Conveyancing Act 1919 (NSW)
Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Australian Securities and Investments Commission v GetSwift Limited [2020] FCA 504
In the matter ofMulberry Capital Management Pty Limited v Shen - AVL Application [2022] NSWSC 1023
Stott v Advanta Seeds Pty Ltd [2020] NSWSC 846
Touma v Diocese of Saint Maron, Sydney [2020] NSWSC 1926

Category: Procedural rulings
Parties: Reliance Financial Services Aust Pty Ltd (Plaintiff)
Alex Ali Assaf (First Defendant)
Lion Gain Pty Ltd (Sixth Defendant)
Representation:
Counsel:
Mr D Allen (Plaintiff)
Mr M Thompson (First Defendant)
Solicitors:
McEvoy Legal (Plaintiff)
KDA Legal (First and Sixth Defendant)

File Number(s): 2021/00252227
Publication restriction: Nil

EX TEMPORE JUDGMENT (REVISED)

This is an application by the first and sixth defendants for an order that the first defendant, Alex Ali Assaf, be granted leave to give evidence at the hearing commencing on 8 August 2022 by audio-visual link (AVL) from Lebanon. The plaintiff, Reliance Financial Services Aust Pty Ltd (Reliance Financial), opposes the application. For the reasons that follow, I have granted the application, subject to conditions.
These proceedings, which were commenced by Reliance Financial on 14 September 2021, concern an amount of $250,000 which Reliance Financial claims that Mr Assaf induced RFFK Pty Ltd (RFFK) to loan and invest in a company, Bnktown Pty Limited (Bnktown; deregistered), pursuant to an oral agreement which provided that Mr Assaf guaranteed payment of the loan and any interest and which agreement was subsequently recorded in writing.
Reliance Financial, who claims to have been assigned RFFK's rights as against Mr Assaf and his assets, sues Mr Assaf and other defendants in connection with the $250,000 for breach of contract and breach of s 18 of the Australian Consumer Law (Competition and Consumer Act 2010 (Cth), Sch 2). It also seeks declarations that three properties of which Mr Assaf is a registered proprietor are subject to charges for payment of the amount of the $250,000 plus interest (which now total $5,255,593.78) and that loan deeds between Mr Assaf and three of the defendants, which are said to support caveats on title to the properties, are avoided and void as alienation of property pursuant to section 37A…

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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Details

Case: [2022] NSWSC 1061
Decision Date: 04 August 2022

CaseChat Overview and Summary

The case of Reliance Financial Services Aust Pty Ltd v Assaf involved a contested application for the first defendant to give evidence by audio-visual link from Lebanon. The first defendant, Mr Assaf, did not wish to travel to Australia due to the risks posed by COVID-19 and because he was the primary carer for his ill father, who resides in Lebanon. The matter was heard in the Supreme Court of New South Wales.

The legal issues before the court were whether the first defendant’s reluctance to travel due to the COVID-19 pandemic and his carer responsibilities constituted sufficient grounds for permitting him to give evidence via audio-visual link, and if so, what conditions should be imposed on such a mode of testimony. The court had to balance the rights of the parties to a fair trial, including the right to present evidence, against the practical difficulties posed by the pandemic and the defendant's personal circumstances.

The court held that the first defendant's concerns regarding the COVID-19 pandemic and his carer responsibilities were legitimate and warranted the granting of the application, subject to certain conditions. The conditions imposed included the requirement that the first defendant be cross-examined in the presence of his legal representative and that the audio-visual link be set up in a manner that ensured the integrity and fairness of the proceedings. The court found that these measures would adequately safeguard the interests of all parties involved.

The final orders of the court allowed the first defendant to give evidence by audio-visual link from Lebanon, subject to the conditions specified in the judgment. The court's decision recognised the need to adapt legal proceedings in light of the extraordinary circumstances posed by the COVID-19 pandemic, while ensuring that the administration of justice was not compromised.

Orders