Zenah Project Developments Pty Ltd v Kanj (No. 2) [2020] NSWDC 380

District Court New South Wales

Medium Neutral Citation: Zenah Project Developments Pty Ltd v Kanj (No. 2) [2020] NSWDC 380 Hearing dates: 21 July 2020 Date of orders: 21 July 2020 Decision date: 21 July 2020 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraphs 38 and 42 Catchwords: PRACTICE AND PROCEDURE – whether proceeding should be summarily dismissed – action for conversion for allegedly stolen prestigious motor vehicle – whether proper claimant joined – where manager of corporate plaintiff ignorant of underlying transaction – where controller of corporate plaintiff is undischarged bankrupt – where potential alternative claimant is in external administration and has not asserted title to stolen vehicle Legislation Cited: Bankruptcy Act 1966 (Cth), ss 5, 58, 77 Uniform Civil Procedure Rules 2005 (NSW), rr 6.29, 7.2, 13. 4, 14.23 Cases Cited: Cachia v Hanes (1994) 179 CLR 403 Knight v FP Special Assets Ltd (1992) 174 CLR 178 Category: Principal judgment Parties: Zenah Project Developments Pty Ltd (Plaintiff) Mr H Kanj (Defendant) Representation: No appearance by the plaintiff Defendant appeared in person File Number(s): 2019/292025 Publication restriction: Nil

Judgment

INTRODUCTION 1. Before the Court is consideration of whether the proceeding should be summarily dismissed on account of the wrong plaintiff continuing to agitate the claim against the defendant. 2. This issue comes about because on 22 June 2020 I made certain procedural directions concerning this matter. My reasons for doing so were published as Zenah Project Developments Pty Ltd v Kanj [2020] NSWDC 322 ('My Earlier Reasons'). What follows in these reasons assumes some familiarity with My Earlier Reasons. Indeed, these reasons are to be properly construed in the light of My Earlier Reasons. 3. Relevantly, on 22 June 2020, I directed that: 1. the plaintiff be given the opportunity to show cause why the proceeding should not be dismissed against it with indemnity costs; and 2. the plaintiff and Mr Mehajer be given opportunity to argue who should be liable to pay those costs. 1. The Court forwarded those reasons to the liquidator to Mehajer Bros Pty Ltd and to Mr Ayach. 2. On 22 June 2020, unlike on the earlier occasion (15 June 2020) when Mr Salim Mehajer purported to appear for the plaintiff, a solicitor appeared for the plaintiff. So as to ensure that he was apprised of the reasons and the directions, on 24 June 2020, I arranged for my Associate to email My Earlier Reasons to Mr Mehajer through the email address he had used to directly correspond to the Court; when purporting to act for the plaintiff. 3. It is notable that when the proceeding was before me today, the legal representative who appeared on 22 June 2020 had withdrawn. When the matter was called today, Mr Kanj appeared in person, as before. There was no appearance for the plaintiff.