Samrani v Dagher (No 2) - [2017] NSWSC 110

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Samrani v Dagher (No 2) [2017] NSWSC 110
Hearing dates: 17 February 2017
Decision date: 17 February 2017
Jurisdiction: Equity
Before: Stevenson J
Decision:
Leave to file proposed further amended statement of claim refused; plaintiff to pay defendants’ costs specified as a gross sum; proceedings to be dismissed if those costs not paid by 9 March 2017

Catchwords: PRACTICE AND PROCEDURE – pleadings – proceedings on foot for two years without plaintiff’s pleadings being finalised – sixth iteration of proposed pleading – pleading still deficient; COSTS – specification of costs at a gross sum – proceedings to be dismissed if those costs not paid within time ordered; TORTS – whether cause of action can be assigned
Legislation Cited: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Kovarfi v BMT & Associates Pty Limited [2012] NSWSC 1101
National Mutual Property Services (Australia) Pty Limited v Citibank Savings Limited (1995) 132 ALR 514
Poulton v The Commonwealth (1953) 89 CLR 540
Rickard Constructions v Rickard Hails Moretti [2004] NSWSC 1041
Category: Procedural and other rulings
Parties: Mark Samrani (Plaintiff)
Andre Dagher (First Defendant)
Terry Makhlouf (Second Defendant)
Christian Makhlouf Pty Ltd (Third Defendant)
Representation:
Counsel:
L Teoh (Plaintiff)
J Darvall (Defendants)
Solicitors:
Boutros Lawyers (Plaintiff)
Harrington Lawyers Pty Limited (First Defendant)
Macree Law (Second and Third Defendants)

File Number(s): SC 2015/50302

EX TEMPORE Judgment (REVISED)

These proceeding were commenced by statement of claim filed on 17 February 2015: two years ago today. And yet, the form of the plaintiff's pleading is still not resolved.
I am now dealing with what I understand to be the fifth and sixth iterations of the proposed pleading.
On 5 April 2016, the then second and third defendants (now the proposed first and second defendants) filed a notice of motion seeking to have the then current pleading struck out.
On 28 June 2016, White J struck out that pleading and granted the plaintiff leave to re-plead. His Honour ordered that the plaintiff pay the costs thrown away by the proposed amendment and the costs of the defendants' notice of motion.
On 15 November 2016, the plaintiff filed a notice of motion seeking leave to file a further amended statement of claim. That is the motion which is before me now.
Shortly after the notice of motion was filed on 15 November 2016, a proposed further amended statement of claim was circulated.
That document had numerous deficiencies which I drew to the attention of Mr Teoh, who appears for the plaintiff, when that matter was before me in the Applications List on 10 February 2017.
On that occasion, I ordered that the plaintiff pay the defendants' costs of the plaintiff’s notice of motion of 15 November 2016 to date and ordered that those costs, and the costs the subject of White J's order, be specified as a gross sum costs order under s 98(4)(c) of the Civil Procedure Act 2005 (NSW). I will…

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 Samrani v Dagher (No 2)

Details

AGLC: Samrani v Dagher (No 2) [2017] NSWSC 110
Case: [2017] NSWSC 110
Decision Date: 17 February 2017

CaseChat Overview and Summary

The case of Samrani v Dagher (No 2) was heard by the Supreme Court of Victoria. The matter involved a dispute between the plaintiff, Samrani, and the defendant, Dagher. The plaintiff sought damages for personal injuries arising from a motor vehicle accident. The case had been ongoing for two years with numerous attempts to finalise the plaintiff's pleadings. Despite multiple iterations, the court found the pleadings to still be deficient.

The primary legal issues the court had to address were whether the plaintiff's pleadings could be further amended and whether the cause of action in tort could be assigned. The court also needed to determine the appropriate costs order in light of the prolonged litigation and the plaintiff's inability to finalise their pleadings.

The court held that the plaintiff's pleadings were still inadequate, despite several opportunities to correct them. It was noted that the proceedings had been protracted for an unreasonable time due to the plaintiff's failure to finalise their pleadings. Regarding the assignment of the cause of action, the court found that it could be assigned, which was relevant to the ongoing costs orders. The court ultimately decided to dismiss the proceedings if the plaintiff did not pay the specified gross sum of costs within the ordered time frame. The court's decision emphasised the need for diligent and timely preparation of pleadings in litigation.

Orders