Wakim v Wakim

[2018] NSWCA 61

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Wakim v Wakim [2018] NSWCA 61
Hearing dates:	21 March 2018
Date of orders:	21 March 2018
Decision date:	21 March 2018
Before:	Payne JA
Decision:	(1) Until the Court of Appeal delivers its judgment in the 2017/00372408 appeal or further order of the Court of Appeal, the respondent be restrained from doing any acts or taking any steps to evict the appellant from the premises at 28 Rosemont Street, Punchbowl, New South Wales.  (2) Costs of the motion to be costs in the cause.
Catchwords:	CIVIL PROCEDURE – application for injunction – whether serious question to be tried – usual undertaking as to damages – balance of convenience – expedition – case management
Legislation Cited:	Uniform Civil Procedure Rules (NSW)
Cases Cited:	Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Texts Cited:	None
Category:	Procedural and other rulings
Parties:	Elias George Wakim (Applicant) Karime Wakim (Respondent)
Representation:	Counsel: D Hawkins (Applicant) C Robinson (Respondent)   Solicitors: Attia Lawyers (Applicant) Cambridge Law (Respondent)
File Number(s):	2017/00372408
Publication restriction:	None
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Civil Citation: [2017] NSWSC 1283 Date of Decision: 22 September 2017 Before: Sackar J File Number(s): 2015/229975

Judgment

[Amended in accordance with the principles in Bar-Mordecai v Rotman [2000] NSWCA 123 at [194] and published 27 March 2018]

1. PAYNE JA: This is an application for an injunction brought by Elias George Wakim. He has resided at 28 Rosemount Street Punchbowl (the Punchbowl property) for approximately 30 years. He is currently residing there rent free. He seeks an order preventing his mother Karime Wakim, the registered proprietor, from taking steps to have him evicted from the Punchbowl property.

2. On 22 September 2017, Sackar J delivered judgment in in Elias George Wakim v Karime Wakim [2017] NSWSC 1283 in favour of Karime Wakim. At [1]-[3] of the primary judgment, his Honour detailed the procedural history of the case as follows:

“[1] These proceedings arise from an alleged agreement between a son and his parents where he would receive the [Punchbowl property] after they died, in return for him providing his parents care until that date, and consideration of $200,000.

[2] The Plaintiff claims he loyally performed such an agreement, and makes claims in contract and estoppel. As a result the Plaintiff seeks an order for specific performance of the agreement and other consequential relief including a declaration the Defendant holds her registered interest in the property on constructive trust for the Plaintiff. In the alternative, the Plaintiff seeks financial adjustment under the Property (Relationships) Act 1984.

[3] The Defendant denies the agreement and performance of the agreement, and further denies the Plaintiff’s entitlement to any of the relief sought.”

3. The primary judge reached the following conclusion at [445] of the primary judgment:

“[445]…I am satisfied the Plaintiff’s claim should fail on all grounds. In my view, there was no alleged 1990 Agreement, nor common intention or conduct of a similar effect, entitling the Plaintiff to the Punchbowl Property upon the death of the Defendant and the late Mr Wakim, provided he performed his obligations under that agreement. Further, in my view the Plaintiff did not make any contributions, including payment of the alleged $202,000 or $200,000 consideration, which would entitle him to the Punchbowl Property had any Alleged 1990 Agreement been reached. Similarly, the lack of evidence supporting contributions the Plaintiff alleged he made to the Defendant and Punchbowl Property satisfies me that even if no Alleged 1990 Agreement existed, the Plaintiff should not be entitled to an adjustment in the value of the Punchbowl Property under the PRA.”

The purported notice of appeal

4. Judgment was given by Sackar J on 22 September 2017 but orders were only made by his Honour on 27 October 2017. Accordingly, the applicant was required to file a notice of intention to appeal within 28 days of the later date, that is, by 26 November 2017: r 51.8 of the Uniform Civil Procedure Rules (NSW) and the definition of “material date” in UCPR r 51.2. The applicant filed a notice of intention to appeal on 5 December 2017, outside of the permitted period. UCPR r 51.16(1)(c) provides that:

“(c) if a notice of intention to appeal has not been filed and served under this Part and the notice of appeal is not filed pursuant to leave to appeal--within 28 days after the material date or such other time as the Court may fix.”

5. Whilst a document entitled “Notice of Appeal” was stamped “received” by the Court on 29 January 2018, the applicant’s purported notice of appeal was filed on 5 March 2018, well outside the time limit. Accordingly, the applicant requires an extension of time for filing the notice of appeal. UCPR r 51.16(2) gives power to the Court to extend time under UCPR r 51.16(1)(c) at any time.

6. The applicant has not, as yet, sought such an extension of time. I will shortly return to that subject.

The application for an injunction

7. Since the primary judgment the applicant has continued to reside at the Punchbowl property.

8. On 5 March 2018, the applicant received a letter from the respondent’s solicitor giving notice that the applicant must vacate the Punchbowl property by no later than 14 March 2018. It is clear on the evidence before me that Karime Wakim no longer consents to Elias George Wakim residing at the property. She wishes either to live at the property herself or to sell the property.

9. On 13 March 2018, the applicant filed a notice of motion seeking the following orders:

“1. The Respondent be restrained from doing any acts or taking any steps to evict the Applicant at the premises 28 Rosemount Street, Punchbowl NSW prior to the completion of the NSW Court of Appeal proceedings now on foot.

2. That the Applicant’s costs of the Motion be costs in the cause.

3. Such other order as this Honourable Court deems fit.”

10. On 15 March 2018, I made the following orders ex parte (the respondent was given notice of the hearing but advised that her legal advisors were not available until today):

“1. Upon the undertaking of the appellant to pay the prescribed fee within 14 days, leave granted to the appellant to file in Court notice of motion dated 13 March 2018.

2. Appellant to file any additional affidavit evidence or submissions on the motion with the chambers of Payne JA by 4pm 19 March 2018.

3. Respondent to file any affidavit evidence or submissions on the motion with any evidence with the chambers of Payne JA by 4pm 20 March 2018.

4. Stand the motion over for hearing 9:30am Wednesday 21 March 2018 before Payne JA.

5. Until 4pm 21 March 2018 or until further order of the Court, the respondent be restrained from doing any acts or taking any steps to evict the appellant from the premises at 28 Rosemont Street, Punchbowl, New South Wales.”

11. I also made clear to the parties that I expected each to be in a position to address the following matters on 21 March 2018:

“1. Any reason why an urgent date should not be fixed for filing the appeal books;

2. Any reason why an urgent date should not be fixed for filing submissions;

3. Any reason why the appeal should not be fixed for hearing in May 2018, or shortly thereafter.”

Evidence on the application

12. The evidence on the motion was read without objection. There was no cross-examination of any witness.

13. The affidavit of Elias George Wakim sworn 13 March 2018 stated that:

1. his solicitors had contacted the respondent’s solicitors asking if the respondent proposed to exercise her right to evict the applicant after 14 March 2018, and that no firm response had been received.

2. the applicant is afraid he will have nowhere to live if he is evicted while the appeal is on foot in the Court of Appeal.

14. The affidavit of Muhammad Elias Attia sworn 14 March 2018 stated that:

1. he is the applicant’s solicitor. He contacted the respondent’s solicitor on 12 March 2018 asking whether the respondent intended to evict the applicant, but did not receive a firm response.

15. The affidavit of Karime Wakim sworn 19 March 2018 stated:

1. that she is the sole owner of the Punchbowl property, her sole income is a pension of roughly $410 per week, and that she is in most part confined to a wheelchair and dependent on her children (excluding the applicant);

2. that a sale of the Punchbowl property which had been agreed in 2017 was not completed by reason of the conduct of the applicant and that she now wishes to live at the Punchbowl property where her children (excluding the applicant) can help her more easily;

3. that the applicant still lives at the Punchbowl property and has always lived there without paying rent, that she is afraid of him and being alone with him, and that she no longer wants anything to do with him;

4. that following the primary judgement she asked her other sons to arrange for the applicant to leave the house. Her sons have told her that they do not want to physically remove the applicant themselves;

5. that she wants to move back into the Punchbowl property but also have the option of selling the property if she decides to do so; and

6. that the applicant does not have her permission to remain in the house.

16. The affidavits of Raed Rahal sworn 19 March 2018 and 20 March 2018 stated:

1. he is the solicitor for the respondent. On 1 February 2018 he sent a letter to the applicant demanding he vacate the Punchbowl property;

2. on 21 February 2018, the letter was returned unclaimed. Between 21 February and 5 March 2018, he made attempts to ascertain if the police would act to remove the applicant from the Punchbowl property but he did not receive a response; and

3. on 5 March 2018, he prepared a further letter to the applicant demanding he vacate the Punchbowl property and attempted to arrange service. On the same date he prepared a letter to the Bankstown Police, and is yet to receive a response from them to that letter.

17. On 19 March at 3.55pm, email correspondence was forwarded to my chambers by the solicitor for Mr Wakim attaching an affidavit of Mohammed Elias Attia said to be sworn on 14 March [sic] 2018 (but most probably sworn on 19 March 2018). That application sought a continuation of the order I had made on 15 March 2018 and an adjournment for a lengthy period to enable counsel to consider voluminous material received on Sunday evening from Mr Wakim’s former solicitors.

18. The Court replied to that correspondence in the following terms:

“Absent receipt of consent short minutes agreed by each of the parties, the matter remains listed for hearing at 9.30am, Wednesday 21 March 2018. The interim ex parte injunction granted by his Honour expires at 4pm on 21 March 2018. Any application for an adjournment and/or an extension of the interim injunction will be heard at 9.30am, Wednesday 21 March 2018. The respondent continues to have leave to file such evidence and submissions it wishes to file on the question of the injunction by 4pm, Tuesday 20 March 2018. …”

Submissions by the parties

19. On 15 March 2018, counsel for the applicant filed written submissions in this matter. The applicant submitted that the Court should grant an injunction for the period until the determination of the applicant’s appeal in this Court. The applicant submitted that the issue to be determined on this appeal is his right to beneficial ownership of the Punchbowl property arising from an alleged family agreement pursuant to which the applicant allegedly gave the respondent, inter alia, $202,000. It was submitted that the elements entitling the applicant to an interlocutory injunction pending the outcome of his appeal to this Court were satisfied: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 at [8]-[16], [60], [91].

20. The applicant submitted that there was a serious question to be tried on the appeal, namely whether he had in fact entered into the alleged family agreement. The applicant listed the following 11 grounds of appeal alleging that the primary judge erred in:

1. finding the respondent gave truthful evidence denying the agreement;

2. finding the form and performance of the agreement was made up;

3. finding the significance of Brigitte Wakim’s police statement in 2010 meant the applicant had not paid the respondent $200,000;

4. not take [sic] account or properly take account of the applicant’s parents’ written language difficulties, and the applicant’s trust in his parents when making the finding that no record of the agreement was significant;

5. finding the applicant gave no reason for giving the $200,000;

6. finding the applicant had misplaced confidence that he would get $200,000 to give to the respondent;

7. finding that it was unlikely the agreement occurred where the applicant did not pay the $200,000 in the years immediately after the 1990 agreement;

8. finding the applicant’s parents were not sufficiently disabled in 1990 and this meant it was unlikely they entered any agreement in 1990 with the applicant;

9. finding the applicant’s $1,045.000 compensation was not the source of the $200,000;.

10. holding the evidence showed that the appellant never performed any other duties or made any contributions under the agreement in addition to the $200,000.00 consideration; and

11. holding that there was no evidence that the respondent was an inveterate gambler, potentially gambling away the $200,000.00 given to her by the appellant.

21. The applicant submitted that the balance of convenience favoured the granting of injunctive relief preventing his eviction from the Punchbowl property because if he were evicted then the subject matter of the appeal would be lost. The applicant also submitted that he had no alternative place to reside should the injunction not be granted and that irreparable harm would be suffered by him in that event.

22. The applicant submitted that the respondent would not suffer undue prejudice if injunctive relief were granted because the respondent had effectively acquiesced to his continued residence at the Punchbowl property for a period of roughly six months following the primary judgment and therefore any injunction would merely maintain the status quo.

23. The applicant agreed to give the usual undertaking as to damages.

24. At the hearing this morning, counsel for the applicant initially submitted that the matter should be adjourned for a month to enable preparation as a large volume of material had been obtained from the applicant’s former solicitors on Sunday 18 March 2018. Counsel submitted that she had not had an opportunity properly to consider that material. It was submitted that an injunction should be granted for that period.

25. The application for an adjournment was opposed. The respondent correctly submitted that there was no appeal properly on foot, pointing out that the notice of intention to appeal was served out of time and thus the purported notice of appeal was filed out of time. No summons seeking leave to extend the time to file the notice of appeal had been filed.

26. It was submitted that there was no claim in the proceedings below that the applicant should be entitled to occupy the Punchbowl property.

27. It was also submitted that “the injunction sought by the applicant is unsupported by any evidence which would militate in favour of granting the order sought, to postpone the exercise by the respondent of her rights”.

Consideration

28. This is an urgent application made by Mr Wakim. I intend no criticism of his present representatives but it is quite unsatisfactory that they are not in a position properly to assist the Court today by reason of the applicant’s recent change of legal representatives.

29. It is equally unsatisfactory that no process seeking leave to rely on the notice of appeal out of time has been attended to.

30. I am troubled about whether the applicant has established a serious question to be tried in the sense that that there is any arguable basis for the appeal from the decision of Sackar J.

31. On the face of it, the challenge made by the applicant in the notice of appeal is limited to findings of primary fact made by Sackar J, which findings were based, in substantial part, on credit findings about witnesses his Honour saw give evidence. Usually, such findings can only be overturned by an appellate court where incontrovertible facts or uncontested testimony show that the factual findings are erroneous, glaringly improbable or contrary to compelling inferences: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at 128-129 per Gleeson CJ, Gummow and Kirby JJ.

32. It is not correct, however, that it is no part of the applicant’s claim that he is entitled to reside at the Punchbowl property. Whatever the merits of that claim, he pleaded and relied upon an equitable interest in the property entitling him to possession of the Punchbowl property, as Sacker J recorded in the judgment.

33. Having given anxious consideration to the matter I am persuaded that there is, by a bare margin, a serious question to be tried about whether the applicant’s appeal could succeed. The applicant faces considerable challenges in successfully attacking the factual findings of Sackar J, but I cannot conclude that those challenges are unarguable.

34. The applicant has offered an undertaking as to damages. The respondent submitted that the undertaking is worthless. Whilst not persuaded that the undertaking as to damages is worthless, it does appear that the applicant is not in a financial position to make good on the undertaking in any meaningful way. The respondent this morning sought, effectively as security for the undertaking and as a term of any injunction, the payment by the applicant of an occupation fee as a term of any injunction, said to be 50 per cent of the market rent, in an amount of $250 per week. On the evidence the applicant is a disability pensioner and I decline to impose such a fee as a term of any injunction.

35. As to the balance of convenience, the consequence of refusing to grant an injunction will be that the successful respondent before Sackar J will be entitled now to possession of the Punchbowl property and that the applicant’s appeal, at least in some respects, will be rendered moot.

36. The respondent has, of course, succeeded before Sackar J and is prima facie entitled to possession of the Punchbowl property. She had in 2017 exchanged contracts for sale of the property, only to have the sale thwarted by the claim the applicant made before Sackar J and which he continues to press on this appeal. On the other hand, as I have said, the applicant’s appeal will, at least in part, be rendered moot if an injunction is not granted.

37. The balance of convenience favours the grant of an interlocutory injunction, but only by the barest of margins and only in circumstances where the applicant is ready, willing and able to have the appeal prepared and brought on as a matter of urgency.

38. The relief I am prepared to grant is conditioned upon the giving of an undertaking as to damages and upon strict compliance by the applicant with the orders for preparation of the appeal I will shortly announce. The balance of convenience does not favour the grant of an injunction beyond the short period provided by those orders.

39. The applicant should understand that if there is non-compliance with the orders of the Court for preparation of the appeal for any reason the balance of convenience I have found in favour of the applicant may well be different. Accordingly, strict compliance with these orders is required. Those orders are:

1. By 4pm, 11 April 2018, direct that a summons seeking leave to extend the time for filing a notice of appeal be filed, which notice of appeal shall be in the form the applicant wishes to pursue on this appeal.

1. By 4pm, 18 April 2018, direct that the applicant file red, blue and black appeal books. The blue book is to contain any motion seeking to rely upon further evidence on the appeal, the content of that further evidence and evidence about why the Court should permit the further evidence to be led on the appeal.

2. By 4pm, 18 April 2018, direct that the applicant file written submissions in chief.

3. By 4pm, 2 May 2018, direct that the respondent file written submissions.

4. By 4pm, 9 May 2018, direct that the applicant file submissions in reply.

5. By 4pm, 10 May 2018, direct that the applicant file the orange appeal book.

6. List this matter for hearing on 16 May 2018.

7. The parties have leave to seek to re-list the matter by email to the chambers of Payne JA on 48 hours' notice.

40. If there is any non-compliance by the appellant with these orders when the matter is re-listed before me I will to hear argument about whether the interim relief I have granted remains appropriate.

41. Upon the giving of the usual undertaking as to damages by the appellant, I make the following order:

1. Until the Court of Appeal delivers its judgment in the 2017/00372408 appeal or further order of the Court of Appeal, the respondent be restrained from doing any acts or taking any steps to evict the appellant from the premises at 28 Rosemont Street, Punchbowl, New South Wales.

2. Costs of the motion to be costs in the cause.

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Decision last updated: 27 March 2018