Tadros v J&R Investment Services Pty Ltd & Ors

[2008] NSWSC 63

CITATION:	Tadros v J&R Investment Services Pty Ltd & Ors [2008] NSWSC 63
HEARING DATE(S):	7 February 2008
JUDGMENT DATE :	7 February 2008
JURISDICTION:	Equity Division
JUDGMENT OF:	Palmer J
EX TEMPORE JUDGMENT DATE:	7 February 2008
DECISION:	Plaintiff’s Summons dismissed.
CATCHWORDS:	PRACTICE & PROCEDURE – Whether issues in Local Court proceedings sufficiently connected to issues in Supreme Court or Federal Court proceedings to require all proceedings to be heard together.
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW) – s.140
CATEGORY:	Procedural and other rulings
PARTIES:	Anthony Tadros – Plaintiff J&R Investment Services Pty Ltd – First Defendant Joseph Wakim – Second Defendant Rita Wakim – Third Defendant
FILE NUMBER(S):	SC 4199/07
COUNSEL:	R. Ardino (Sol) (Plaintiff) J. Lahood (Sol) (Defendants)
SOLICITORS:	Morgan Ardino & Co (Plaintiff) James Lahood & Associates (Defendants)
LOWER COURT JURISDICTION:	Compensation Court

4199/07 Tadros v J&R Investment Services Pty Ltd & Ors

JUDGMENT – Ex tempore
7 February, 2008

1 The Plaintiff in proceedings 4199 of 2007, Mr Anthony Tadros, by an Amended Summons seeks orders that Local Court proceedings between himself as defendant and Joseph Wakim and Rita Wakim as Plaintiffs, namely proceedings 411 of 2006, be transferred into the Equity Division of this Court pursuant to s 140 of the Civil Procedure Act 2005 (NSW) (“CPA”). 2 Mr Tadros seeks by way of consequential relief that a Cross Claim filed in the Local Court proceedings, which has been struck out by order of that Court on 31 August 2007, be reinstated in these proceedings. The Amended Summons also seeks that the Local Court proceedings be heard in this Division together with certain proceedings commenced by Elias George Wakim against Mr Tadros, proceedings 5728 of 2007. 3 The evidence suggests that the relationship between Mr Tadros, Mr and Mrs Wakim and Elias George Wakim is long and complex. However, the fact that a relationship between parties is long and complex does not necessarily mean that every dispute between those parties should be heard in the one set of proceedings. The question which is to be determined on this application is essentially one of case management. The issue is whether the claim by Mr and Mrs Wakim against Mr Tadros in the Local Court proceedings involves substantially the same substratum of facts and circumstances as may be in issue in the proceedings initiated by Mr George Wakim in this Court and in a claim initiated in the Federal Court by Mr Tadros against Mr and Mrs Wakim. 4 The issues in the Local Court proceedings are quite straightforward. By their statement of claim Mr and Mrs Wakim sue Mr Tadros for arrears of rent under a written lease and for damages, being the cost of reletting the premises when the lease was allegedly terminated. The amount claimed by the plaintiffs in those proceedings is well within the jurisdictional limit of the Local Court. 5 By his defence in the Local Court proceedings, Mr Tadros raises only three matters. He says that there was an agreement between himself and Mr and Mrs Wakim whereby he would obtain a release from his obligations under the lease in consideration of certain promises by him. One of those promises was that he would vacate the premises by the end of June 2005. Another was that he would carry out substantial repairs on two vehicles owned by the Plaintiff. Another ground of defence is that there had not been any demand for the outstanding rent by Mr and Mrs Wakim. 6 Those are the only issues raised by way of defence to Mr and Mrs Wakim's claim in the Local Court proceedings. A Cross Claim, however, was filed in the Local Court proceedings which traversed the history of Mr Joseph Wakim and Mr Tadros in a series of car dealing partnerships over a considerable time. 7 The Cross Claim sought by way of relief an accounting of the partnership business. That accounting would show, it was alleged, that Mr Joseph Wakim would be indebted to Mr Tadros in a substantial sum of money. The relief included a claim for damages for future economic loss arising from Mr Wakim's alleged breaches of his duty as a partner in the partnership. There was also a claim that Mr and Mrs Joseph Wakim discharge a debt of $500,000 owed by Mr Tadros to Mr George Wakim. 8 The facts and circumstances alleged in the Cross Claim are complex, to say the least. However, what is clear is that, firstly, the Cross Claim involves a claim for a sum of money which is beyond the jurisdiction of the Local Court and secondly, that the facts and circumstances relied upon in the Cross Claim are not part of the same substratum of facts relied upon by Mr and Mrs Wakim in their Local Court claim and by Mr Tadros in his defence of that claim. 9 The Cross Claim in the Local Court proceedings was struck out by the learned Magistrate on the basis that the claims pleaded therein exceeded the Local Court's jurisdiction. 10 Earlier, Mr Tadros had commenced proceedings in the Federal Court against Mr Joseph Wakim and Mrs Rita Wakim pleading in substance the matters which had been set out in the Cross Claim filed in the Local Court proceedings. 11 The Federal Court has struck out the Statement of Claim filed by Mr Tadros on a number of grounds which I need not enter into but on the basis that Mr Tadros has leave to re-plead, upon payment of the costs incurred by Mr and Mrs Wakim in the Federal Court proceedings in a sum exceeding $20,000. 12 Mr Tadros has not paid those costs and the Federal Court proceedings remain in abeyance. They are still current in that no final disposition of the case has been ordered by the Federal Court. 13 In those circumstances Mr Tadros now comes to the Supreme Court seeking to start afresh, as it were, and to raise in this Court the substance of the dispute with Mr and Mrs Wakim which was pleaded in the Cross Claim in the Local Court. The position is a little more complicated by reason of the fact that Mr George Wakim has commenced proceedings against Mr Tadros in this Court claiming payment of a sum of money and Mr Tadros wishes to allege, amongst other things, that the dealings between himself and Mr George Wakim giving rise to the alleged debt owing to Mr Wakim involved a fraud practiced on a finance company, undue influence, duress and other unconscionable conduct on the part of Mr George Wakim in dealing with Mr Tadros and the making of a loan by the finance company which was known by an employee within that company to be based upon false information as to the assets and liabilities of Mr Tadros procured to be given to the finance company by a dishonest agreement between a solicitor and Mr George Wakim. 14 I think I have recited enough of the facts which are in dispute as between Mr Tadros, Mr George Wakim and Mr Joseph Wakim to show that none of the matters raised in the Cross Claim in the Local Court, in the Statement of Claim in the Federal Court, and in Mr Tadros' proposed defence to the claim made in this Court by Mr George Wakim are sufficiently connected to the simple issues raised in the Local Court proceedings to require all of those multifarious issues to be brought into one set of proceedings. 15 In my opinion, an orderly disposition of the disputes between the parties requires that the straightforward issues delineated by the Statement of Claim and the Defence in the Local Court be heard separately and without further delay, and that the other claims between the parties be determined either in the Federal Court or in this Court if the Federal Court proceedings are transferred into this Court. 16 For those reasons, I do not think it is appropriate to bring the Local Court proceedings into this Court pursuant to s 140 CPA. I think it follows from what I have said that the other substantive relief in the Amended Summons should be refused.

17    The orders I make today are that the Plaintiff’s Amended Summons is dismissed. Costs reserved.

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