Su v Kamal (No 2)

[2022] ACTSC 239

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Su v Kamal (No 2)

Citation:

[2022] ACTSC 239

Hearing Dates:

1 July, 5 July, 17 August and 1 September 2022

DecisionDate:

2 September 2022

Before:

McCallum CJ

Decision:

(1)  Pursuant to rule 1404 of the Court Procedure Rules, dismiss the proceedings;

(2)  The plaintiff is to pay the sixth defendant’s costs;

(3)  Pursuant to rule 1616 of the Court Procedure Rules, the funds paid to the Court by the sixth defendant are to be paid out to the sixth defendant.

(4)  Stay the operation of Order 3 for 30 days.

Catchwords:

CIVIL PROCEDURE — DISCOVERY — Whether plaintiff provided proper disclosure — Where Court previously found inadequate disclosure and ordered further disclosure — Repeated failure to comply with orders of the Court — Whether proceedings should accordingly be dismissed

Legislation Cited:

Court Procedures Rules 2006 (ACT), rr 607(3), 1404, 1450, 1616

Court Procedures Act 2004 (ACT), s 5A

Cases Cited:

Su v Kamal [2022] ACTSC 161

Bi v Mourad [2010] NSWCA 17

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 in debt commenced by the plaintiff in 2020.  A number of defendants were initially joined but the sixth defendant is the only remaining defendant. 

1. The statement of claim relies on the terms of a deed of loan which identifies the sixth defendant as one of the borrowers of the funds the subject of the loan. The sixth defendant does not dispute the fact that it is named as a borrower but defends the action on the basis that it is not liable for the funds advanced and interest that has accrued on that sum because the second defendant, who signed the loan agreement purportedly on behalf of the sixth defendant as its sole director, had no authority to bind it.  The sixth defendant further contends that, had the plaintiff made the necessary inquiries, it would have been apparent that the second defendant had no authority to bind the sixth defendant.  It may be seen from that summary that the knowledge of the plaintiff leading up to the execution of the loan is an issue in the proceedings, if not the central issue.

1. The plaintiff is a sole trader who provides mortgage services using funds loaned in his own private capacity.  The loan the subject of his claim in these proceedings was a loan for a sum of $100,000 made on 8 May 2019.  The loan deed specified that interest was to accrue at the rate of 24 per cent per annum, increasing to 36 per cent per annum…