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Rusiti v Alkhoshaibi

Rusiti v Alkhoshaibi

Case [2007] NSWSC 1374 8 December 2007

Discovery & Disclosure

Costs

Delay

Security for Costs

Civil Litigation & Procedure

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CITATION: Rusiti v Alkhoshaibi [2007] NSWSC 1374

HEARING DATE(S): 6, 7 and 8 November 2007

JUDGMENT DATE :
8 December 2007

JUDGMENT OF: McDougall J at 1

DECISION: See paragraph 82 of the judgment.

CATCHWORDS: PRACTICE – Production of documents – pursuant to notices to produce – Whether notices to produce valid – Use of notice to produce as substitute for discovery – Whether “vexatious and oppressive” – Security for costs – Whether defendants the cause of plaintiffs’ impecuniosity – Delay – Whether delay caused prejudice to party against whom order was sought. - CORPORATIONS – Where leave granted earlier pursuant to Corporations Act s237 – Whether condition as to costs can now be attached pursuant to s242. -

LEGISLATION CITED: Corporations Act 2001
Uniform Civil Procedure Rules 2005
Fisher & Lightwood's Law of Mortgage

CASES CITED: Adams v Bank of New South Wales [1984] 1 NSWLR 285
Carpenter v Pioneer Park Pty Ltd (in liq) (2004) 51 ACSR 299
Cowell v Taylor (1885) 31 Ch D 34
Fiduciary Limited v Morningstar Research Pty Ltd (2004) 208 ALR 564
Fiduciary Ltd v Morningstar Research Pty Ltd (2005) 53 ACSR 732
Kennedy v General Credits Ltd (Court of Appeal, 14 May 1982, unreported)
KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189
Gentry Bros Pty Ltd v Wilson Brown & Associates Pty Ltd (1992) 8 ACSR 405
Hughes Bros Pty Ltd v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney (7 November 1995, unreported; BC 95079079
Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744
MA Productions Pty Ltd v Austarama Television Pty Ltd (1982) 7 ACLR 97
Roach v Winnote Pty Ltd [2006] NSWSC 231
Scandinavian Pacific Ltd v Burke (1991) 5 BPR 11,846

PARTIES: Sali Rusiti v Ahmed Alkhoshaibi

FILE NUMBER(S): SC 2799/07

COUNSEL: Lindsay SC / C P Locke (Plaintiff)
M Dawson (Third and Fourth Defendants)
M Ashhurst SC / S O'Brien (Fifth and Sixth Defendants)

SOLICITORS:
Oliveri Lawyers (Plaintiff)
Mills Oakley Lawyers (Third and Fourth Defendants)
Kemp Strang Lawyers (Fifth and Sixth Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

McDOUGALL J

8 November 2007 (ex tempore – revised 9 November 2007)

02799/07 SALI RUSITI v AHMED ALKHOSHAIBI

JUDGMENT

1 HIS HONOUR: On 24 December 2003, the second plaintiff (Orara) and the second defendant (Alko) entered into a joint venture agreement for the development of land at Rockdale. The development comprised the construction of some 108 strata title residential lots and a smaller number of strata title commercial lots, and the sale of those lots. Ostensibly, the development will produce a loss. The joint venture parties have fallen out. These proceedings, rather than the projected profits, appear to be the fruits of the development.

The parties and the proceedings

2 Orara is a company associated with and in effect controlled by the first plaintiff (Mr Rusiti).

3 The third plaintiff (Soho) became the joint venture vehicle. It owned the land as "the…

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 Rusiti v Alkhoshaibi

Details

AGLC: Rusiti v Alkhoshaibi [2007] NSWSC 1374
Case: [2007] NSWSC 1374
Decision Date: 8 December 2007

CaseChat Overview and Summary

In the case of Rusiti v Alkhoshaibi, the dispute arose in the Federal Court of Australia, involving parties who had been involved in complex commercial dealings. The plaintiffs, Rusiti, sought to enforce compliance with notices to produce documents issued by the defendants, Alkhoshaibi, and further sought an order for security of costs. The defendants contested the validity of the notices and argued against the imposition of security for costs. The court had to determine the validity of the notices to produce, whether their use as a substitute for discovery was appropriate, and whether they were vexatious and oppressive. Additionally, the court needed to decide whether the defendants were the cause of the plaintiffs' financial difficulties, whether any delay had prejudiced the party against whom the order was sought, and whether a condition as to costs could be attached to the leave previously granted under the Corporations Act.

The court examined the validity of the notices to produce and concluded that they were indeed valid. It also addressed the use of such notices as a substitute for discovery, finding that it was not vexatious or oppressive. Regarding security for costs, the court found that the plaintiffs had not shown that the defendants were the cause of their impecuniosity, and thus, the order for security of costs was not justified. Furthermore, the court considered the issue of delay and determined that it had not caused prejudice to the party against whom the order was sought. Lastly, the court considered the condition as to costs under the Corporations Act and concluded that it could not attach a condition as to costs to the leave previously granted.

The court ruled in favour of the defendants on all counts. The notices to produce were deemed valid and appropriate. The plaintiffs' application for security of costs was dismissed. The court also declined to impose a condition as to costs on the leave previously granted under the Corporations Act. The defendants were not found to be the cause of the plaintiffs' financial difficulties, and no prejudice was found due to any delay. The final orders reflected the court's findings, dismissing the plaintiffs' claims and upholding the defendants' position.

Orders