Swift Container Services Pty Ltd v El Haj Ali

[2025] NSWSC 239

Supreme Court

New South Wales

Medium Neutral Citation:	Swift Container Services Pty Ltd v El Haj Ali [2025] NSWSC 239
Hearing dates:	20 March 2025
Date of orders:	20 March 2025
Decision date:	20 March 2025
Jurisdiction:	Equity
Before:	Kunc J
Decision:	Judgment for the plaintiff against the first defendant; funds in controlled monies account to be paid to the plaintiff
Catchwords:	GUARANTEE AND INDEMNITY — Contract of guarantee — Enforcement — No issue of principle
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 94
Category:	Principal judgment
Parties:	Swift Container Services Pty Ltd (Plaintiff) Mustafa El Haj Ali (First Defendant) Fatme Salem (Second Defendant)
Representation:	Counsel: A Paterson (Plaintiff) J Simpkins (Second Defendant) Solicitors: RD Lawyers (Plaintiff) Fazzini Lawyers (Second Defendant)
File Number(s):	2024/00248095
Publication restriction:	Nil

EX TEMPORE JUDGMENT (Revised)

1. The plaintiff, Swift Container Services Pty Ltd, for whom Mr A Paterson of Counsel appeared today, provided services to SYD Haulage Pty Limited. SYD has been wound up. The first defendant, Mr El Haj Ali, was the sole director and shareholder of SYD. The second defendant, Ms Salem, for whom Mr J Simpkins of Counsel appeared, was the registered proprietor of a property as joint tenant with Mr El Haj Ali.

2. Swift sues Mr El Haj Ali on a written guarantee which he gave to Swift in respect of SYD's obligations to Swift as a condition of Swift extending credit to SYD. That guarantee included a provision whereby, to secure his obligations to Swift under the guarantee, Mr El Haj Ali gave Swift a charge over his real property, together with the right to lodge a caveat over any such real property in reliance on the charge.

3. Pursuant to the provisions of the guarantee, Swift lodged a caveat over the property. These proceedings were commenced in response to a lapsing notice issued in relation to the caveat. Both defendants were legally represented when these proceedings were commenced. When the matter first came before the Court, an agreement was entered into between the parties on a without admissions basis. That agreement was for half of the net proceeds of sale of the property to be placed in a controlled monies account, not to be distributed without the express written agreement of both the plaintiff and the first defendant, or an order of the Court.

4. Notwithstanding directions that he do so, Mr El Haj Ali has not served any evidence. When the matter was called on for hearing today there was no appearance for Mr El Haj Ali. His solicitors have ceased to act. The evidence satisfies me that he had properly been put on notice of this hearing.

5. Ms Salem had been joined only because she was a joint tenant of the property. She has entered a submitting appearance, save as to costs. While she was represented today, no costs or other order was sought against her, and I excused Mr Simpkins from further attendance on her behalf.

6. The evidence satisfies the Court, and it finds, that the amount currently owing by SYD to Swift in respect of services provided by Swift to SYD is $564,000, and that amount falls within the terms of the guarantee and charge.

7. The Court also finds that Mr El Haj Ali executed the guarantee. I specifically record that finding in the face of the defence originally filed on behalf of Mr El Haj Ali, which denied that he had signed the guarantee. There is no evidence before the Court in support of that denial. There is, however, evidence filed on behalf of Swift from its Accounts Manager, Mr Adel Baloch, which the Court accepts, and by reference to which the Court finds that Mr El Haj Ali signed the guarantee as a guarantor in the presence of Mr Baloch.

8. Pursuant to the agreement made at the commencement of these proceedings (see [3] above), a sum of $309,218.15 was paid into a controlled monies account with the Commonwealth Bank of Australia. On 10 July 2024, the Court had made orders including:

“7.    Order that, on a without admissions basis by the first defendant, the monies paid into the controlled monies account as referred to in Notation 4 above [referring to the proceeds of sale of the property] are not to be distributed without the express written agreement of both the plaintiff and the first defendant, or an order of the Court."

9. The Court finds on the evidence that Swift is entitled to judgment against Mr El Haj Ali pursuant to the guarantee for the full amount of its debt in the sum of $564,000. The Court also finds that Mr El Haj Ali’s interest as a joint tenant of the property was subject to the charge. It follows that the sum, representing half the proceeds of sale of the property, is a fund to which Swift is beneficially entitled by reason of the guarantee and charge. There will be a declaration to that effect.

10. Furthermore, pursuant to order 7 made 10 July 2024 (see [8] above), there should be an order that the funds in the account, being the sum and any interest accrued thereon, should now be distributed to Swift in partial satisfaction of Mr El Haj Ali’s judgment debt to Swift.

11. The Court has been informed that the joint signatories to the account are the solicitor for Swift and a solicitor employed by the former solicitor on the record for the defendants. In my respectful view, notwithstanding that Mr El Haj Ali’s solicitor has ceased to act, the Court has jurisdiction to direct the employed solicitor, as an officer of the Court and notwithstanding that her employer no longer holds instructions for Mr El Haj Ali, to execute any withdrawal or other documents necessary to carry into effect the proposed order referred to in [10] above.

12. The Court will, therefore, among other orders, direct that the employed solicitor execute documents of the kind referred to in the preceding paragraph. While there is no suggestion that the employed solicitor will fail to comply with the Court's direction, for more abundant caution the Court will also nominate the registrar to execute those documents if the employed solicitor has not done so on or before 28 March 2025 (see Civil Procedure Act 2005 (NSW), s 94).

13. For these reasons, the Court will make the orders set out in the short minutes of order which I have amended, initialled, dated today and placed with the papers. Those contain a direction that the orders be entered forthwith.

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Decision last updated: 20 March 2025