Su v Kamal

[2022] ACTSC 161

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Su v Kamal

Citation:

[2022] ACTSC 161

Hearing Date:

1 July 2022

DecisionDate:

5 July 2022

Before:

McCallum CJ

Decision:

(1)       That the plaintiff give further discovery in accordance with the previous order to comply with the notice to produce discoverable documents within 14 days;

(2)       Stand the proceedings over before McCallum CJ on 26 July 2022 at 9am.

(3)       Order the plaintiff to pay the sixth defendant’s costs of the matters determined today which include the costs of Mr Barry’s appearances on 9, 23 and 27 May, 23 June and 1 and 5 July 2022.

Catchwords:

CIVIL PROCEDURE — DISCOVERY — Possession, custody or control — Where certain documents were not produced — Where documents must have been in solicitor’s possession — Where no explanation provided for failure to produce

Legislation Cited:

Court Procedures Rules 2006 (ACT), rr 606(1)(c), 607(3)

Cases Cited:

Cossey v Canberra Airport Pty Limited [2022] ACTSC 70

Mulcahy v Registrar General Office of Regulatory Services [2013] ACTCA 45

Parties:

Haiyong Su ( Plaintiff)

Fadi Nihad Kamal ( First Defendant)

Danny Noumeir (Second Defendant)

Pepper Finance Corporation Limited (Third Defendant)

Secure Funding Pty Ltd (Fourth Defendant)

5 Blackman Cres Macquarie Pty Ltd (Sixth Defendant)

B & F O Z Investment Pty Ltd (Third Party)

Representation:

Counsel

N Li ( Plaintiff)

S Barry ( Sixth Defendant)

Solicitors

Yingke Law ( Plaintiff)

CKB Associates Lawyers ( Sixth Defendant)

File Number:

SC 214 of 2020

McCALLUM CJ:

1. These are proceedings for the enforcement of a loan.  The plaintiff initially sought possession of two properties owned by the sixth defendant in Macquarie in the Australian Capital Territory.  The proceedings originally also sought relief against other parties but those claims have been resolved either by the discontinuance of the proceedings as against those parties or, in the case of the second and third defendants, by the entry of judgment.

1. The plaintiff and the sixth defendant are the only remaining active parties.  The properties have been sold and the proceeds, an amount of some $460,000, have been held in Court since last November, presumably attracting interest at a lower rate than might be the case if those funds were available to the sixth defendant for its own commercial use.

1. On 24 March 2022, the plaintiff consented to an order to comply with a notice to produce discoverable documents.  The matter was listed again on 9 May 2022.  On that date, there was no appearance for the plaintiff and the proceedings were stood over to 23 May 2022.  The Registrar indicated that on that return date the plaintiff should show cause why the proceedings should not be dismissed in light of his failure to appear.

1. On 23 May there was again no appearance for the plaintiff and the matter was stood over before me on 27 May.  The plaintiff was notified of that adjourned date by the Court and I think also by letter from the solicitor for the sixth defendant.  On 27…