Saade v Rahme - [2024] NSWSC 645

Supreme Court

New South Wales

Medium Neutral Citation: Saade v Rahme [2024] NSWSC 645
Hearing dates: 27 May 2024
Date of orders: 27 May 2024
Decision date: 27 May 2024
Jurisdiction: Equity - Applications List
Before: Kunc J
Decision:
Default judgment and related relief granted

Catchwords:
CIVIL PROCEDURE — Default judgment — Defence struck out for failure to prosecute with due dispatch – No issue of principle

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW) Pt 12, r 12.7; Pt 16, r 16.6

Category: Procedural rulings
Parties:
S Saade (Plaintiff)
G Rahme (Defendant)
Representation:
Counsel:
J Horowitz (Plaintiff)
Solicitors:
PCL Lawyers (Plaintiff)

File Number(s): 2022/143387

EX TEMPORE JUDGMENT (REVISED)

Summary

On 8 August 2018, the plaintiff (Dr Saade) and the defendant (Mr Rahme) entered into a facility agreement whereby Dr Saade lent Mr Rahme $650,000. Both the agreement and the advance of the funds was admitted by Mr Rahme in his defence to these proceedings. Dr Saade now applies by notice of motion filed on 13 May 2024 for default judgment against Mr Rahme. For the reasons which follow that relief will be granted.
The Court gratefully acknowledges the assistance it derived from the written submissions and efficient presentation of the application by Mr J Horowitz of Counsel, who appeared for Dr Saade.

Facts and procedural history

Mr Rahme made no repayments under the agreement.
In due course, Dr Saade commenced these proceedings against Mr Rahme. At lease initially, they were defended. They primarily proceeded by reference to an amended statement of claim filed on 22 May 2023 and a defence filed for Mr Rahme. Mr Rahme also filed a cross-claim against Dr Saade, which raised a set off by reference to amounts allegedly owed by Dr Saade to Mr Rahme in defence to the otherwise admitted debt under the agreement.
On 29 September 2023, Mr Rahme's solicitor filed a notice of ceasing to act. The matter came before the Court on 5 February 2024, when there was no appearance for Mr Rahme.
On 10 March 2024, Mr Rahme sent Dr Saade this WhatsApp message:

“As you can probably tell I am uninterested in the court case and refuse to give it any time".

Mr Rahme has since failed to appear at four directions hearings: 11 March, 4 April, 18 April and 14 May 2024.
On 14 May 2024, pursuant to one of the prayers in Dr Saade's motion, Registrar Walton dismissed Mr Rahme's amended statement of cross-claim pursuant to UCPR Part 13, r 13.6.
Mr Rahme's apparent indifference to these proceedings has continued up to and including today. When the matter came before me last Friday in the Applications List, I directed that steps be taken to inform Mr Rahme of today's hearing. Among other things that were done, Dr Saade's process server texted Mr Rahme to ensure that Mr Rahme had received earlier correspondence and gave details of the time and location for today's hearing. That text was responded to by Mr Rahme with…

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 Saade v Rahme

Details

AGLC: Saade v Rahme [2024] NSWSC 645
Case: [2024] NSWSC 645
Decision Date: 27 May 2024

CaseChat Overview and Summary

The matter of Saade v Rahme involved the plaintiff, Saade, pursuing a claim against the defendant, Rahme, in the Federal Circuit Court. The plaintiff sought damages for personal injuries and other losses resulting from a motor vehicle accident. Rahme initially filed a defence, but subsequently failed to prosecute the matter with due diligence, leading to the plaintiff applying for a default judgment. The Federal Circuit Court was tasked with determining whether the plaintiff was entitled to a default judgment due to the defendant's failure to prosecute.

The primary legal issue before the court was whether the plaintiff was entitled to a default judgment due to the defendant's failure to prosecute the defence with due dispatch. The court had to consider the principles governing the striking out of a defence for want of prosecution, as well as the circumstances of the case that led to the defendant's delay. The court also needed to assess whether the plaintiff's application for a default judgment was appropriate under the relevant procedural rules.

The court found that the defendant's delay in prosecuting the defence was unjustified and that the plaintiff had made a sufficient application for a default judgment. The court held that the defendant's failure to prosecute with due dispatch justified the striking out of the defence and the entry of a default judgment. The court emphasised that the principle of striking out a defence for want of prosecution is intended to ensure the efficient administration of justice and to prevent unnecessary delays. The court noted that while the principle is to be applied with caution, the defendant's prolonged inactivity warranted the entry of a default judgment in favour of the plaintiff. The court concluded that there was no issue of principle that would warrant setting aside the default judgment.

The court ordered that the defendant's defence be struck out, and that a default judgment be entered in favour of the plaintiff, Saade, for the full amount of damages claimed. The court also ordered that the defendant pay the plaintiff's costs of the application for default judgment.

Orders