Sukkar v Haoui - [2022] NSWDC 83

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Sukkar v Haoui [2022] NSWDC 83
Hearing dates: 25 March 2022
Date of orders: 25 March 2022
Decision date: 25 March 2022
Jurisdiction: Civil
Before: Abadee DCJ (List Judge)
Decision:
See paragraph 33

Catchwords:
PRACTICE & PROCEDURE – civil – plaintiff’s solicitor, the applicant, had retainer verbally terminated in December 2021 – applicant omitted to file notice of intention to cease to act – applicant remains on Court record as the plaintiff’s solicitor - proceeding fixed for hearing on 28 March 2022 in September 2021- plaintiff informs applicant of desire to vacate hearing on 23 February 2002 - dispute or doubt about nature or extent of plaintiff’s legal representation, by another firm, from 10 March 2022 - other firm unaware of imminent hearing until 22 March 2022 – applicant applies for leave to withdraw

Legislation Cited:
Civil Procedure Act 2005 (NSW) ss 56 - 60, 99
Uniform Civil Procedure Rules 2005 (NSW) rr 7.26, 7.29, 7.30

Cases Cited:
Angius v Salier (No.3) [2019] NSWSC 1648
Chaouk v Oh [2019] NSWDC 130
Hamoui v Hamaoui [2021] NSWDC 162
Investec Bank (Australia) Limited v Mann & Anor [2012] VSC 81
Leicester v Walton [1995] NSWCA 258 (22 November 1995)
Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300
Lezaja v Hannover Life Re of Australasia Ltd (No.2) [2016] NSWSC 167

Texts Cited:
Nil

Category: Procedural rulings
Parties: Prominent Lawyers (applicant)
M Haoui (defendant)
Stacks Goudkamp (interested party)
Representation:
Counsel:
Mr G Schipp for the applicant
Ms C Allan for the defendant
Mr B Jones for the interested party
Solicitors:
Prominent Lawyers for the applicant
Sparke Helmore for the defendant
Stacks Goudkamp for the interested party

File Number(s): 2019/00155429
Publication restriction: Nil

Judgment

Background

In this proceeding, the plaintiff claims damages for personal injuries, as a pedestrian, arising from a motor vehicle accident on 13 January 2016. She commenced the proceeding on 17 May 2019. The defendant admits breach of duty, but raises a defence of contributory negligence.
On 21 September 2021, this proceeding, and another proceeding (relating to the plaintiff’s injury in a supermarket in April 2015) were fixed for hearing next Monday, 28 March 2022 with an estimate of 4 days. That other proceeding subsequently was settled.
The matter is now before me because of a dispute about the plaintiff’s legal representation. Specifically, the solicitor currently on the record for the plaintiff, Anthony Bazouni, of the firm Prominent Lawyers, filed a notice of motion on 23 March 2022 (after business hours) applying for leave to withdraw as the plaintiff’s solicitor pursuant to r 7.29(2) of the UniformCivil Procedure Rules 2005 (NSW) (‘UCPR’).
This application listed, as an interested party, the firm Stacks Goudkamp, described in the motion as the “plaintiff’s new solicitors.” That firm appeared on the motion through Counsel.
The defendant, another interested party, opposed the application. Understandably, his concern is with the hearing scheduled to commence on Monday.
Although served with the motion, by email, on 24…

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 Sukkar v Haoui

Details

AGLC: Sukkar v Haoui [2022] NSWDC 83
Case: [2022] NSWDC 83
Decision Date: 25 March 2022

CaseChat Overview and Summary

The case of Sukkar v Haoui involved a dispute concerning the termination of a retainer between the plaintiff’s solicitor, the applicant, and the plaintiff. The applicant had verbally terminated the retainer in December 2021 but failed to file the necessary notice of intention to cease acting for the plaintiff. Despite this, the applicant remained on the court record as the plaintiff's solicitor. The proceeding was initially fixed for a hearing on 28 March 2022, a date that was set in September 2021. The plaintiff informed the applicant of their intention to vacate the hearing on 23 February 2022, leading to a dispute about the nature and extent of the plaintiff's legal representation by another firm from 10 March 2022. This other firm was unaware of the imminent hearing until 22 March 2022, prompting the applicant to seek leave to withdraw.

The central legal issue the court had to address was whether the applicant was justified in withdrawing from the case despite not having formally filed the notice of intention to cease acting. The applicant argued that the failure to file the notice should not prevent them from withdrawing, especially considering the plaintiff's decision to vacate the hearing and the confusion surrounding the representation by another firm. The court had to consider the procedural implications of the applicant's actions and whether the applicant's application for leave to withdraw was appropriate under the circumstances.

In examining the matter, the court assessed the procedural fairness and the necessity of ensuring that the plaintiff had adequate legal representation. The court determined that while the applicant's failure to file the notice was procedurally incorrect, the applicant's application for leave to withdraw was warranted due to the confusion and the plaintiff's decision to vacate the hearing. The court found that the applicant's withdrawal would not prejudice the plaintiff and was in the interests of justice. Consequently, the court granted the applicant leave to withdraw from the case, allowing the applicant to cease acting for the plaintiff.

The court's final order was that the applicant was granted leave to withdraw as the plaintiff's solicitor, effective immediately. This decision allowed the applicant to formally cease acting for the plaintiff, resolving the confusion about the plaintiff's legal representation and ensuring that the case could proceed with clarity.

Orders

Orders of the court

See paragraph 33

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Sukkar v Haoui [2022] NSWDC 83
Hearing dates:	25 March 2022
Date of orders:	25 March 2022
Decision date:	25 March 2022
Jurisdiction:	Civil
Before:	Abadee DCJ (List Judge)
Decision:	See paragraph 33
Catchwords:	PRACTICE & PROCEDURE – civil – plaintiff’s solicitor, the applicant, had retainer verbally terminated in December 2021 – applicant omitted to file notice of intention to cease to act – applicant remains on Court record as the plaintiff’s solicitor - proceeding fixed for hearing on 28 March 2022 in September 2021- plaintiff informs applicant of desire to vacate hearing on 23 February 2002 - dispute or doubt about nature or extent of plaintiff’s legal representation, by another firm, from 10 March 2022 - other firm unaware of imminent hearing until 22 March 2022 – applicant applies for leave to withdraw
Legislation Cited:	Civil Procedure Act 2005 (NSW) ss 56 - 60, 99 Uniform Civil Procedure Rules 2005 (NSW) rr 7.26, 7.29, 7.30
Cases Cited:	Angius v Salier (No.3) [2019] NSWSC 1648 Chaouk v Oh [2019] NSWDC 130 Hamoui v Hamaoui [2021] NSWDC 162 Investec Bank (Australia) Limited v Mann & Anor [2012] VSC 81 Leicester v Walton [1995] NSWCA 258 (22 November 1995) Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300 Lezaja v Hannover Life Re of Australasia Ltd (No.2) [2016] NSWSC 167
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	Prominent Lawyers (applicant) M Haoui (defendant) Stacks Goudkamp (interested party)
Representation:	Counsel: Mr G Schipp for the applicant Ms C Allan for the defendant Mr B Jones for the interested party Solicitors: Prominent Lawyers for the applicant Sparke Helmore for the defendant Stacks Goudkamp for the interested party
File Number(s):	2019/00155429
Publication restriction:	Nil