Al Dakhili v Al Kheurallah [2023] NSWSC 47

Supreme Court New South Wales

Medium Neutral Citation: Al Dakhili v Al Kheurallah [2023] NSWSC 47 Hearing dates: 1 – 2 February 2023 Date of orders: 8 February 2023 Decision date: 08 February 2023 Jurisdiction: Equity Before: Meek J Decision: Specific performance of deed granted - Consequential orders made Catchwords: DEED — Parties in dispute regarding operation of barbershop businesses in three locations — Plaintiff commences main proceedings and parties resolve differences by entering into a deed of settlement and release — Deed sets out particular provisions relating to each of the three businesses including particular provisions relating to assignment of a lease in respect of one of the businesses — Delay of one year between the date of the deed and the date plaintiff's solicitors sent a letter to the landlord requesting their consent for an assignment of the relevant lease — Landlord specifies consent requirements which the plaintiff in turn seeks the first defendant's cooperation in complying with — First defendant declines/fails to sign documentation — Plaintiff commences these proceedings seeking specific performance of the deed — First defendant incarcerated for part of the time of the proceedings and upon release then detained by immigration authorities — First defendant nonetheless legally represented for many directions hearings up to and including the time the matter is fixed for hearing — First defendant withdraws instructions to solicitors and is subsequently self-represented on several directions hearings and then released from detention — Some delay in first defendant seeking further legal representation — Belated application by first defendant on first day of the hearing to adjourn the hearing — Application refused and hearing proceeds UNREPRESENTED LITIGANTS — Content of procedural fairness INTERPRETERS — First defendant — Born in Kuwait — Assisted by Iraqi-Arabic interpreter — Arrangements for interpreters at the hearing CIVIL PROCEDURE — Hearings — Adjournment — Applicable principles — First defendant legally represented for many directions hearings up to and including time matter is fixed for hearing — First defendant withdraws instructions to solicitors and is subsequently self-represented on several directions hearings and released from detention — Some delay in first defendant seeking further legal representation — No disclosure of defence prior to hearing — Belated application to adjourn hearing refused PRACTICE AND PROCEDURE — Principles regarding email communications with Judge's chambers — Approach with self-represented litigants DEED — Delivery — Requirements regarding delivery of deed CONSTRUCTION & INTERPRETATION — Principles of construction regarding contracts applicable to deeds — Approach to construction aided by identifying possible competing constructions EQUITY — Equitable remedies — Specific performance — Working out of orders for specific performance — Issues in respect of only one of three businesses litigated on application for specific performance — Effect of simmering un-litigated and unresolved other issues on order for specific performance — Whether order for specific performance in respect of litigated issue precludes the Court being able to subsequently address other un-litigated issues EQUITY — Equitable remedies — Defences to specific performance – Delay EQUITY — Equitable remedies — Specific performance — Order for specific performance brings contract under the supervision of the Court — Specific performance ordered subject to proffered undertaking that plaintiff not raise any estoppel argument in the event that a subsequent claim was made by the first defendant under the deed Legislation Cited: Civil Procedure Act 2005 (NSW) Conveyancing Act 1919 (NSW) Corporations Act 2001 (Cth) Migration Act 1958 (Cth) Real Property Act 1900 (NSW) Retail Leases Act 1994 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Adderley v Dixon (1824) 1 Sim & St 607; 57 ER 239 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 ANZ v Mio Amico Pty Ltd [2013] NSWSC 716 Australian Hardboards Ltd v Hudson Investment Group Limited (2007) 70 NSWLR 201; [2007] NSWCA 104 Bauskis v Liew [2013] NSWCA 297 Cong v Shen (No 3) [2021] NSWSC 947 Central Gold Coast Animal Care Facility Incorporated v Wyatt [2022] NSWSC 1373 Crawford Fitting Co v Sydney Valve & Fittings Pty Ltd (1988) 14 NSWLR 438 D Capital 2 Pty Ltd v Western [2022] NSWSC 1064 Fitness First Australia Pty Ltd v Fenshaw Pty Ltd (2016) 92 NSWLR 128; [2016] NSWCA 207 Ford-Hunt v Raghbri Singh [1973] 1 WLR 738 Hamod v State of New South Wales [2011] NSWCA 375 Horn v GA & RG Horn Pty Ltd [2022] NSWSC 1519 JAG Investment Pty Ltd v Strati [1981] 2 NSWLR 600 Khattar v Hills Shoppingtown Pty Ltd (subject to a Deed of Company Arrangement) [2022] NSWSC 363 Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 Lady Naas v Westminster Bank Ltd [1940] AC 366 Neylon v Dickens [1987] 1 NZLR 402 Pianta v National Finance & Trustees Ltd (1964) 180 CLR 146 Quadrant Visual Communications Ltd v Hutchison Telephone (UK) Ltd [1993] BCLC 442 Rossi Recycling Pty Ltd v Buckland Valley Pty Ltd [2022] VSC 467 Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 240 CLR 45; [2002] HCA 5 Scook v Premier Building Solutions Pty Ltd (2003) 28 WAR 124; [2003] WASCA 263 Turner v Bladin (1951) 82 CLR 463 Wardley Australia Ltd v McPharlin (1984) 3 BPR 9500 Willis & Bowring Mortgage Investment Ltd v Belramoul [2009] NSWSC 125 Xenos v Wickham (1866) LR 2 HL 296 Zhang v Zhang [2022] NSWSC 924 Texts Cited: Halsbury's Laws of Australia (online) Seddon, Nicholas, Seddon on Deeds (2nd ed, Federation Press, 2022) Young, Peter, Clyde Croft and Megan Smith, On Equity (2009, Thomson Reuters) Category: Principal judgment Parties: Najah Hasan Dakhal Al Dakhili (Plaintiff) Mohammad Al Kheurallah (in person) (First Defendant) Jawad Al Ghadheeb (Second Defendant) Scissors Style Barber Pty Ltd (Third Defendant) Representation: Counsel: M Klooster (Plaintiff) Self-represented (First Defendant)