Saba v Hakim (No. 2)

[2019] VCC 1692

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMERCIAL DIVISION
GENERAL CASES LIST

Revised
Not Restricted
Suitable for Publication

Case No. CI-18-05002

BESHEER SABA

and

First Plaintiff

PROELEC ELECTRICAL SERVICES PTY LTD (ACN 140 958 845)

Second Plaintiff

v

ANDREW HAKIM

and

First Defendant

DEBBIE HAKIM

   Second Defendant

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JUDGE:	HIS HONOUR JUDGE COSGRAVE
WHERE HELD:	Melbourne
DATE OF HEARING:	Written submissions were filed by the plaintiff on 15 October 2019 and the first defendant on 16 August 2019.
DATE OF RULING:	21 October 2019
CASE MAY BE CITED AS:	Saba & Anor v Hakim & Anor (No. 2)
MEDIUM NEUTRAL CITATION:	[2019] VCC 1692

REASONS FOR RULING

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Tyson Wodak	LDA Legal Pty Ltd t/a Dimos Lawyers
For the First Defendant	Mr P Bradley (solicitor)	SW Legal Pty Ltd

HIS HONOUR:

Background

1       On 11 October 2019, I delivered reasons for judgment (“the principal reasons”) in this matter. I held that Saba was entitled to judgment against the first defendant, Hakim, in the sum of $160,000.00, together with interest, but Hakim was otherwise entitled to defend the proceeding. I gave directions about the parties filing and serving both proposed minutes of final order giving effect to the principal reasons, together with submissions about costs. These reasons assume familiarity with the principal reasons and adopt the same terminology.

Submissions

2       Saba contends that:

(a)      He should receive interest at the rate of 10 percent per annum being the applicable rate under the Penalty Interest Rates Act 1983 (Vic). This rate applies from 1 February 2017 by reason of section 58 of the Supreme Court Act 1986 (Vic) and section 50 of the County Court Act 1958 (Vic).

(b)      Hakim should pay Saba’s costs of the application for summary judgment and the costs of the debt claim, and both sets of costs should be taxed immediately.

3       By virtue of his submissions and proposed orders, Hakim accepted that:

(a)      interest was payable on the judgment sum of $160,000.00 from 21 May 2018 until 11 October 2019, being the date of judgment.

(b)      Hakim should pay Saba’s cost of the summary judgment application and costs of the claim.

4       However, Hakim appeared to argue that Saba should not be able to enforce the order for costs through taxation until the hearing and determination of the trial involving the second defendant, which is set down for hearing on 31 March 2020.

Consideration

5       I heard Saba’s summary judgment application on 28 August 2019 and the parties filed additional submissions the following day. I thereafter was absent from the court due to illness and annual leave until 7 October 2019.

6       On 19 September 2019, there was another hearing before Judicial Registrar Burchell, at which the judicial registrar vacated the trial date of 23 September 2019 and refixed the trial for March 2020. The judicial registrar also joined ProElec Electrical Services Pty Ltd as a second plaintiff to the proceeding and made further procedural orders addressing various interlocutory matters.

7       Given the submissions made and orders proposed by Hakim in the material he filed, I consider that Saba is entitled to interest at the rate, and in the amount, sought by Saba in its proposed orders, and that Saba should receive his costs of the summary judgment application and the costs of the debt claim, such costs are to be taxed on a standard basis in default of agreement.

8       The principal reasons indicate that, in so far as Saba raised questions about a charging provision and an ability to enforce an alleged equitable interest in the Property by judicial sale, Hakim should have leave to defend the claim because:

·    the trial against the second defendant will proceed in March 2020;

·    there are likely to be contested questions of fact and law at that trial; and

·    there is likely to be some overlap (at the very least) in the background and context of matters brought to the court’s attention for determination at that trial.

9       It is preferable to delay taxation of the costs until the hearing and determination of the trial scheduled for next year. If taxation occurs when the trial has been completed and all disputed issues have been resolved, it will be easier for the Costs Court to make its assessment of the situation consistently with the findings and conclusions reached by the trial court and with reduced likelihood of inconsistent findings and duplicated recovery.

Conclusion

10      Accordingly, the court orders that:

1.    There be judgment for the first plaintiff against the first defendant in the sum of $160,000.00.

2. The first defendant pay the first plaintiff interest of $22,312.33, being calculated on the sum of $160,000.00 from 21 May 2018 until 11 October 2019, at the rate prescribed by section 2 of the Penalty Interest Rates Act 1983 (Vic), namely 10% per annum.

3.    The first defendant otherwise have leave to defend the proceeding.

4.    The first defendant pay the first plaintiff’s costs of this application, such costs to be taxed on a standard basis in default of agreement.

5.    The first defendant pay the first plaintiff’s costs of his debt claim, such costs to be taxed on a standard basis in default of agreement.