Commonwealth Development Bank of Australia Ltd v Rafidi & Anor [1999] NSWSC 616

New South Wales Supreme Court CITATION : Commonwealth Development Bank of Australia Ltd v Rafidi & Anor [1999] NSWSC 616 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 13941/96 HEARING DATE(S) : 3 June 1999 JUDGMENT DATE : 23 June 1999

Commonwealth Development Bank of Australia Ltd (Plaintiff)

PARTIES : Iyad Rafidi (First Defendant)

Tina Rafidi (Second Defendant) JUDGMENT OF : Master Harrison

Mr A G Bell (Plaintiff) COUNSEL : Mr D K L Raphael (Defendants) L E Taylor of Sydney (Plaintiff) SOLICITORS : Smith Monti & Costa of Fairfield (Defendants) CATCHWORDS : Set aside default judgment ACTS CITED : Supreme Court Rules s 40 r 9(2) CASES CITED : Cohen v Williams (1995) 39 NSWLR 476 DECISION : See para 35

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THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER HARRISON

WEDNESDAY, 23 JUNE 1999

13941/96 - COMMONWEALTH DEVELOPMENT BANK OF AUSTRALIA v IYAD RAFIDI & ANOR

JUDGMENT (Set aside default judgment)

1 MASTER: By notice of motion filed 19 October 1998 the defendants seek that default judgment entered on 29 January 1997 be set aside. The defendants relied on their affidavits sworn 9 October 1998, a further affidavit of the first defendant of 25 November 1998, affidavits of Tony Manna sworn 9 October 1998, Peter Graham Heness sworn 3 June 1999 and Roslind Sue Winter of 19 May 1999. The plaintiff relied on the affidavits of Nicholas Charles Ireland sworn 18 February 1999, Stephen John Asciak sworn 18 February, Stephen Terry Dubedat sworn 2 March 1999 and Paul Denison Westwood sworn 31 May 1999. Mr Dubedat, Ms Winter and Mr Westwood are handwriting experts. Both defendants were cross examined. 2 The defendants sought an adjournment on the basis that firstly, Mr Manna was unavailable for cross examination and secondly, they wished to file a further affidavit, namely that of Mr Heness. Mr Heness was also unavailable for cross examination. The defendants' solicitors had been notified in time that Mr Manna was required for cross examination. In lieu of granting an adjournment, the plaintiffs wished to proceed with the application even if I allowed the affidavit of Mr Manna and Mr Heness into evidence. I allowed these affidavits to be read.