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Taouk v Louis (No 1)

Taouk v Louis (No 1)

Case [2014] NSWSC 656 26 May 2014

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Supreme Court

New South Wales

Medium Neutral Citation: Youssef Taouk and Najibi Taouk v Najib Louis (No.1) [2014] NSWSC 656
Hearing dates: On the papers
Decision date: 26 May 2014
Jurisdiction: Equity Division
Before: Darke J
Decision:
Motion to re-open hearing is dismissed with costs.

Catchwords: PROCEDURE - civil - application for leave to re-open hearing - applicable principles - factors relevant to exercise of discretion - reason why evidence not available to be called at hearing - importance of evidence sought to be adduced - inconvenience and additional costs - prejudice to defendants - motion dismissed with costs
Legislation Cited: Civil Procedure Act 2005 (NSW) s 56(1)
Cases Cited: Australian Securities and Investments Commission v Rich [2006] NSWSC 826
Smith v NSW Bar Association [1992] HCA 36; (1992) 176 CLR 256
Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471
Category: Interlocutory applications
Parties:
Youssef George Taouk (first plaintiff)
Najibi Taouk (second plaintiff)
Najib Louis (first defendant)
Direct Mortgage Solutions Pty Ltd (second defendant)
Perpetual Trustees Australia Limited (third defendant)
Representation: Counsel: C Leggat SC, M Tibbey (plaintiffs)
J Young (first defendant)
G A Sirtes SC, D Robertson (second and third defendants)
Solicitors: Peter Baker Solicitors (plaintiffs)
G&S Law Group Pty Ltd (first defendant)
Curwoods Lawyers (second and third defendants)

File Number(s): 2012/198193
Publication restriction: Nil.

Judgment

Introduction

The hearing of this matter took place over six days between 1 April 2014 and 8 April 2014. Judgment is reserved. On 17 April 2014, the plaintiffs' solicitor sent a letter to my chambers which attached a Notice of Motion dated that day, and an affidavit sworn on that day by the solicitor, Mr Peter Baker. By that Notice of Motion, the plaintiffs seek to re-open their case to read an affidavit sworn by Mr Trevor Ward on 15 April 2014.

The parties agreed that the matter could be dealt with on the papers. Directions were then made for the filing and service of written submissions. The plaintiffs provided submissions on 2 May 2014 and the defendants provided submissions in response on 9 May 2014.

The evidence sought to be adduced concerned certain taxation returns that, taken at face value, appear to be taxation returns of the plaintiffs prepared by Mr Ward. These taxation returns were relied upon by the second and third defendants (a mortgage originator and a lender, respectively) in relation to the approval of the loan and mortgage transaction which is the subject of these proceedings. The evidence that Mr Ward would give essentially goes to two related matters. First, Mr Ward deposes that he did not prepare the taxation returns. Secondly, Mr Ward deposes that he neither prepared nor signed a letter dated 25 October 2004 which was, ostensibly, a letter from Mr Ward of Ward Moussa & Co to Fay Baker concerning the taxation returns. Mr Ward further deposes that he was no longer involved in Ward Moussa & Co in October 2004 and that he does not know a person called Fay…

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 Taouk v Louis (No 1)

Details

AGLC: Taouk v Louis (No 1) [2014] NSWSC 656
Case: [2014] NSWSC 656
Decision Date: 26 May 2014

CaseChat Overview and Summary

The proceedings involve an application by the plaintiff, Taouk, to the Supreme Court of New South Wales for leave to re-open the hearing of an action in which Taouk was the plaintiff and Louis was the defendant. The application arose from a dispute related to a contract of sale between the parties. The plaintiff sought to re-open the hearing to call additional evidence, specifically the testimony of a witness who was not available to give evidence at the original hearing.

The central legal issue before the court was whether the plaintiff should be granted leave to re-open the hearing. The court considered the applicable principles governing the exercise of discretion in such matters. Factors relevant to the exercise of discretion included the reason why the evidence was not available to be called at the original hearing, the importance of the evidence sought to be adduced, the inconvenience and additional costs to the defendants, and the potential prejudice to the defendants if the evidence was allowed.

In its decision, the court found that the plaintiff had not demonstrated a sufficient reason why the evidence was not available at the original hearing. The court also found that the evidence sought to be adduced was not of critical importance to the case. Additionally, the court considered the inconvenience and additional costs that would be incurred by the defendants if the hearing was re-opened, as well as the potential prejudice to the defendants. Given these factors, the court dismissed the plaintiff's application for leave to re-open the hearing. The court also ordered that the plaintiff pay the defendants' costs associated with the application.

Orders