Touma v Saparas

[2000] NSWCA 11

NEW SOUTH WALES COURT OF APPEAL

CITATION:     Touma v Saparas [2000]  NSWCA 11

FILE NUMBER(S):
40283/99

HEARING DATE(S):           17 February 2000

JUDGMENT DATE:            17/02/2000

PARTIES:
Daniel Touma v Carmen Regina Saparas

JUDGMENT OF:      Powell JA Stein JA Hodgson CJinEq   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):        DC 5935/98

LOWER COURT JUDICIAL OFFICER:     Delaney DCJ

COUNSEL:
P Cook (Appellant)
J Berwick (Respondent)

SOLICITORS:
D Riggio & Associates (Appellant)
Jeffrey Hinde & Associates (Respondent)

CATCHWORDS:
Denial of Procedural fairness - no issue as to principle

LEGISLATION CITED:
n/a

DECISION:
Appeal dismissed with costs
The Mareva injunction granted in the District Court will continue until satisfaction of the Judgment

JUDGMENT:

IN THE SUPREME COURT  
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40283/99

DC   5935/98

POWELL JA
           STEIN JA

HODGSON CJ in EQ

Thursday, 17 February 2000

Daniel TOUMA v Carmen Regina SAPARAS

JUDGMENT

1. STEIN JA:                The sole ground of appeal relied on is a denial of procedural fairness in Delaney DCJ refusing to adjourn the hearing on 12 March 1999 at the request of the appellant/defendant, Daniel Touma.  All other grounds of appeal are abandoned.  During the hearing the appellant twice unsuccessfully sought an adjournment of the trial.  His Honour delivered judgment on 29 March 1999 in favour of the respondent/plaintiff in the sum of $148,500, which included $13,500 interest.

2. In order to understand the appeal it is necessary to briefly trace the history of the litigation.

3. On 18 August 1998 the plaintiff (in person) issued a Statement of Liquidated Claim for $135,000 plus interest.  The claim alleged a loan by the plaintiff to the defendant of $138,000, and that the defendant had signed a written acknowledgment of the loan and made payments totalling $3,000.

4. On 14 October 1998 solicitors acting for the defendant sent to the plaintiff a standard request for further particulars.  By way of purported reply on 21 October 1998 the plaintiff gave brief particulars and provided a copy of the written acknowledgment of debt allegedly signed by the defendant.

5. It appears that Default Judgment was signed on 4 November 1998.  A Defence was attempted to be filed on 19 November 1998 but was not accepted because of the Default Judgment.  The defence, which was verified by the appellant, denied any indebtedness and denied any agreement with the plaintiff.

6. The plaintiff swore an affidavit on 3 December 1998 which disclosed that she suffered from progressive Multiple Sclerosis.  She deposed as to the facts and annexed a number of documents.  Besides the acknowledgment of debt dated 21 June 1996, the affidavit annexed a letter or statement from Mr Caruso, a Commonwealth Bank Manager dated 13 December 1995, which recorded a payment from the plaintiff’s account of $30,000 to the defendant.  Also annexed was a copy of a cheque for $27,500 dated 15 January 1996 from the defendant, which the plaintiff said he had given to her but asked her not to cash.

7. On 4 December 1998 it appears that the judgment was set aside and, I assume, the…