Sandhurst Trustees Limited v Dabboussi [2022] NSWSC 754

Supreme Court New South Wales

Medium Neutral Citation: Sandhurst Trustees Limited v Dabboussi [2022] NSWSC 754 Hearing dates: 6 June 2022 Date of orders: 6 June 2022 Decision date: 06 June 2022 Jurisdiction: Common Law Before: Beech-Jones CJ at CL Decision: (1) The notice of motion filed 24 February 2022 is dismissed. (2) The first defendant is to pay the plaintiffs' and second defendant's costs of the motion. Legislation Cited: Uniform Civil Procedure Rules, 36.16(2)(a) National Consumer Credit Protection Act Cases Cited: Dai v Zhu [2013] NSWCA 412 Category: Principal judgment Parties: Sandhurst Trustees Limited (First Plaintiff) MCCA Asset Management Ltd (Second Plaintiff) Ahmad Dabboussi (First Defendant/Applicant) Fadile Moubayed Bernard (Second Defendant) Representation: Counsel: Mr F Tao (Plaintiffs) Mr A Dabboussi, in person (First Defendant) Mr T Krayem (Second Defendant)

Solicitors: *** Unrepresented (First Defendant) *** File Number(s): 2021/297983

EX TEMPORE Judgment

(Revised from transcript) 1. By notice of motion filed 24 February 2022, the first defendant Ahmad Dabboussi seeks orders setting aside a default judgment and judgment for possession entered in respect of residential property at Horningsea Park (the Property). 2. The first plaintiff, Sandhurst Trustees Limited, is the custodian for the second plaintiff, MCCA Asset Management Ltd (MCCA), a lender providing Islamic finance. The second defendant, Fadile Moubayed Bernard, is Mr Dabboussi's estranged wife. Ms Bernard and Mr Dabboussi are the registered proprietors of the property. Both Ms Bernard and the plaintiffs oppose the relief sought by Mr Dabboussi. 3. Uniform Civil Procedure Rule r 36.16(2)(a) enables the Court to set aside a default judgment. The power is to be exercised having regard to the interests of justice, including the interests of the parties (see Dai v Zhu [2013] NSWCA 412). 4. Leaving aside a judgment procured by an irregularity, which is not this case, the relevant factors for the exercise of the power include whether there is a real or genuine triable issue in relation to a plaintiffs' claim (or cross‑claim), the moving party's reasons for not applying to set aside the default judgment earlier and the prejudice that is occasioned to the parties arising from that delay. 5. As I will explain in this case, the interests of Ms Bernard are very significant to the outcome of this application. Before addressing these particular issues, it is necessary to set out the somewhat convoluted background to the application.