ALS131 Pty Ltd v Rahme [2020] NSWSC 569

Catchwords: No point of principle Supreme Court New South Wales Medium Neutral Citation: ALS131 Pty Ltd v Rahme [2020] NSWSC 569 Hearing dates: 12 & 14 May 2020 Date of orders: 14 May 2020 Decision date: 14 May 2020 Jurisdiction: Common Law Before: Fullerton J Decision: 1. The balance of the defendant’s notice of motion filed on 26 February 2020 is dismissed. 2. The Court notes: (a) A further document titled Notice of Motion in these proceedings was forwarded by email to the Court and served on the plaintiff’s solicitors on 22 April 2020; and (b) That document was not filed, despite orders made by the Court on 12 May 2020, and is not compliant with the Rules. 3. Any further application for orders of the kind reflected in the balance of the defendant’s notice of motion filed on 26 February 2020 and/or in the unfiled notice of motion is only to be filed by leave. The question of leave is to be dealt with by the Duty Judge. 4. No order as to costs. Catchwords: No point of principle Cases Cited: ALS 131 Pty Ltd v Rahme [2020] NSWSC 161 ALS 131 Pty Ltd v Rahme [2020] NSWSC 210 ALS 131 Pty Ltd v Rahme [2020] NSWSC 429 Category: Procedural and other rulings Parties: ALS131 Pty Ltd (Plaintiff) Tanya Kristin Rahme (Defendant) Representation: Counsel: E Keynes (Plaintiff) Solicitors: Summer Lawyers (Plaintiff) In person (Defendant) File Number(s): 2019/209267 Judgment HER HONOUR : In proceedings brought by a statement of claim filed on 5 July 2019 the plaintiff sought an order for possession of residential premises in Wahroonga (the subject property) alleging mortgage default. Default judgment was entered on 5 September 2019 in favour of the plaintiff for possession of the subject property. A writ of possession issued and was entered that day. Successive applications in February and March 2020 to stay the execution of the writ of possession were unsuccessful ( ALS 131 Pty Ltd v Rahme [2020] NSWSC 161 per Beech- Jones J; ALS 131 Pty Ltd v Rahme [2020] NSWSC 210 per Johnson J ) . For various reasons that do not require elaboration, the writ of possession has not since been executed. It is due to be executed on 16 May 2020 , having been extended to that date by Cavanagh J on very strict terms ( ALS 131 Pty Ltd v Rahme [2020] NSWSC 429 ). On 23 April 2020 the parties appeared before the Registrar at which time orders were made for the filing and serving of any notice of motion upon which the defendant wished to move , together with the filing and serving of evidence and submissions , and the preparation of a joint Court B ook. The Registrar listed the matter for hearing on 12 May 2020. As at 23 April 2020 the only filed notice of motion was dated 26 February 2020. That notice of motion had been filed with le ave in proceedings before Beech- Jones J in February 2020 in which the defendant unsuccessfully sought a stay of the execution of the writ of possession. In that notice of motion the defendant also sought an or der setting aside the Registrar’ s refusal on 9 December 2019 to set aside a default judgment entered in the plaintiff’ s favour on 5 September 2019 to allow her time to file a defence to the substantive proceedings. No defence or draft defence has ever been produced or filed. At [2] of the reasons Beech- Jones J gave for refusing to stay the execution of the writ of p ossession on 23 February 2020 ( ALS 131 Pty Ltd v Rahme [2020] NSWSC 161) he noted the balance of the relief sought in the notice of motion was “ a mixture of submissions and consequential orders ” . He stood the balance of the notice of motion over before the Registrar on 19 March 2020 and directed that any further application for a stay of the writ of possession be referred to the Duty Judge . It appears there was no call over on 19 March 2020. The basis for the making of the residual orders in the filed notice of motion is , in my view , largely inchoate. Another notice of motion, seeking the same relief but in largely in comprehensible terms, albei t not compliant with the Uniform Civil Procedure Rules, seems to have been discussed before the Registrar on 23 April 2020 . It has not since been filed. On 30 April 2020, in an email forwarded to the Court and copied to the plaintiff , the defendant sought an adjournment of the proceeding listed for 12 May 2020 on the basis that she has been unable to comply with the Registrar ’ s orders that she file and serve any evidence in support of the orders she seeks because of an orthopaedic injury she sustained when she fell from a ladder on about 27 April 2020. She attached a medical certificate which declared her unfit to participate in C ourt proceedings until 10 May 2020. The defendant was advised by the Court that , since the plaintiff did not consent to th e adjournment of the hearing, any application for an adjournment would need to be made formally. She was advised by email of the dial-in details to appear in a virtual hearing on 12 May. The matter was listed for hearing at 11:15 am . The plaintiff was advised of that fact. On 12 May 2020 the Court convened to hear the adjournment application. Ms Keynes of counsel appeared for the plaintiff. There was no appearance by the defendant. An unsuccessful attempt was made to contact the defendant by email at 11:29am (at the email address with which she had been communicating with the Court). That contact was followed up by a telephone call to a mobile telephone number the Court was given to understand the defendant customarily used. The call placed to that number went through to a message bank. A message was left advising the defendant that the Court was in session , awaiting her appearance. During a short adjournment to enable the plaintiff ’ s counsel to formulate some proposed orders, at 12.20 pm the defendant sent an email advising, in ter alia, that she had fal len asleep at her desk at 10.30 am but that she was , in any event , unprepared to appear in the proceedings that morning. No mention was made at that time of any physical incapacity. An email was sent to the defendant at 12:31pm advising her that the C ourt would reconvene at 12:45pm and that if she wished to appear in the proceedi ngs she should utilise the dial- in details that had been provided to her . I n the event that she did not appear at the designated time she was advised that final orders would be made in her absence. The defendant appeared at 12:45 pm. She confirmed her understanding that the foreshadowed adjournment of the hearing had to be made personally and that the matter was listed that morning to enable that application to be made if it was to be pursued. In the result , she sought an adjournment of 24 hours to enable her to comply with the o rders made by the Registrar on 23 April 2020, or any further orders the C ourt was minded to make to facilitate further progress of the proceedings. By consent , the following orders were made: 1. The defendant is to file and serve any notice of motion upon which she seeks to move in the proceedings reflecting the residue of orders in the notice of motion filed 25 February 2020 and the orders proposed in an unfiled notice of motion dated 15 April 2020 by midday on 13 May 2020. 2. The plaintiff is to file and serve any evidence in response by 5pm on 13 May 2020. 3. The defendant is to file and serve any submissions in response to the plaintiff’s submissions by 5pm on 13 May 2020. 4. The proceedings comprehended by these orders are listed at 10am on 14 May 2020. By em ail sent on 13 May 2020 at 1:22 pm , the defendant sought an extension of time to 3pm that day to comply with the orders. The plaintiff did not oppose that extension. As at 10:00 am on 14 May 2020 no documents had been filed by the defendant. The proceedings were called on at 10.00am. Both parties appeared remotely. Although the defendant advised the Court that she inte nds to file an application with Legal Aid New South Wales for a grant of aid to enable her to prosecute such claim against the plaintiff as she might be advised she should bring , she did not make any application for any further adjournment of the hearing of the notice of motion and , having not complied with the orders made for the filing and serving of evidence and submissions , she did not wish to be heard further . In those circumstances, the following orders were made in final disposition of the proceedings: 1. The balance of the defendant’s notice of motion filed on 26 February 2020 is dismissed. 2. The Court notes: (a) A further document titled Notice of Motion in these proceedings was forwarded by email to the Court and served on the plaintiff’s solicitors on 22 April 2020; and (b) That document was not filed, despite orders made by the Court on 12 May 2020, and is not compliant with the Rules. 3. Any further application for orders of the kind reflected in the balance of the defendant’s notice of motion filed on 26 February 2020 and/or in the unfiled notice of motion is only to be filed by leave. The question of leave is to be dealt with by the Duty Judge. 4. No order as to costs. I note that t he notice of motion which was listed for hearing today does not seek any order with respect to the pending execution of the writ of possession. The notice of motion concerns only the matters which were left unresolved after the hearing before Beech- Jones J on 26 February 2020 when the notice of motion was filed instanter . ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 July 2020