Aiche v Khoury & Ors [1999] NSWSC 707

New South Wales Supreme Court CITATION : Aiche v Khoury & Ors [1999] NSWSC 707 CURRENT JURISDICTION : Equity FILE NUMBER(S) : 1431/99 HEARING DATE(S) : 28/6/1999, 29/6/99. JUDGMENT DATE : 30 June 1999

Bassam Aiche (Plaintiff) PARTIES : Joseph Khoury (First Defendant) Intercall Direct Pty Limited (Second Defendant) Gaby Khoury (Third Defendant) JUDGMENT OF : Bergin J

COUNSEL : MS Jacobs QC/ S Jacobs (Plaintiff) M Cashion SC (Defendant) SOLICITORS : J Kartsounis & CO (Plaintiff) Davis O'Neill Sistrom (Defendant) CATCHWORDS : Application for Mareva orders in prima facie case of misappropriation; Delay in bringing application CASES CITED : Patterson v BT Engineering (1989) 18 NSWLR 319; Cardile v LED Builders P/L (1999) 73 ALJR 657. DECISION : Application refused.

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BERGIN J

WEDNESDAY 30 JUNE 1999

1431/99 - AICHE v KHOURY & ORS

JUDGMENT EX TEMPORE - DUTY JUDGE 1 This is an application brought by the plaintiff Bassam Aiche by way of notice of motion for the following orders: 1. That the first defendant, Joseph Khoury, be restrained from disposing of or otherwise encumbering his shares in a shop in Bankstown known as V Shop - Bankstown ("V Shop") until such time as this matter has been finally disposed of; and 2. that the defendant Gaby Khoury, be restrained from dispersing any proceeds from the sale of his house at 11 Carrisbrook Avenue, Punchbowl, up to an amount of $150,000 but that he be free to market and sell his home in the ordinary course at arm's length, such moneys to be held in his solicitor's trust account; and 3. that the third defendant, Mr Gaby Khoury, be restrained from encumbering or in any way dealing with his share in the house at Punchbowl other than by a sale at arm's length. 2 The main proceedings that are brought by Mr Aiche were commenced by way of summons on 18 February 1999. Put shortly, it is an oppression suit under s 246AA of the Corporations Law by a series of amended statements of claim. The second amended statement of claim filed in court on 5 May 1999 joined Mr Gaby Khoury as the third defendant seeking an order in relation to his conduct that he, in fact, pay to a company, the second defendant, Intercall Direct Pty Ltd, certain moneys said to have been diverted from the company by reason of both Mr Gaby Khoury and Mr Joseph Khoury's conduct. 3 In the main proceedings there are further claims of breaches of duty by Mr Joseph Khoury in respect of his obligations under the Corporations Law. 4 The history of this matter is important because much of it is relied upon by each party for the purpose of, firstly, the plaintiff pursuing his case for these orders and the defendants, in seeking to rebut the evidence of the plaintiff for these orders. 5 It is clear that Mr Bassam Aiche and Mr Joseph Khoury met in mid-1997. At that time Mr Bassam Aiche was working for Mr Khoury at the V Store at Bankstown. Mr Aiche was employed apparently as a sales person and the company Intercall Communications, or alternatively, the business name Intercall Communications, was the entity through which the Bankstown store operated.