Nayla Ibrahim v Adly Mikhail Tanious & Ors [2007] NSWSC 515

New South Wales Supreme Court

CITATION : Nayla Ibrahim v Adly Mikhail Tanious & Ors [2007] NSWSC 515

HEARING DATE(S) : 01/05/07

JUDGMENT DATE : 1 May 2007

JURISDICTION : Equity Division

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 1 May 2007

DECISION : Plaintiff's notice of motion of 27 March 2007 dismissed with no order as to costs.

CATCHWORDS : PROCEDURE – Supreme Court procedure – New South Wales – Procedure under Rules of court – Commencement of proceedings – Serious question that plaintiff under legal incapacity – Where tutor not pursuing application – Serious question that proceedings commenced irregularly – Application for summary judgment – No evidence that notice of motion served on defendant – Held that plaintiff not entitled to summary judgment – Where defendant could be expected to seek permanent stay of proceedings given lapse of time – Order that notice of motion dismissed. - (NSW) Civil Procedure Act 2005, s 3 - (NSW) Uniform Civil Procedure Rules 2005, r 7.14

De Facto Relationships Act 1984 (NSW) LEGISLATION CITED : Uniform Civil Procedure Rules 2005 (NSW) Civil Procedure Act 2005 (NSW)

CASES CITED : Murphy v Doman (2003) 58 NSWLR 51

Nayla Ibrahim PARTIES : v Adly Mikhail Tanious & Ors

FILE NUMBER(S) : SC 1963/91

COUNSEL : Plaintiff: In person Defendant: N/A

SOLICITORS : Plaintiff: N/A Defendants: N/A

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY JUDGE LIST

WHITE J

Tuesday, 1 May 2007

1963/91 Nayla Ibrahim v Adly Mikhail Tanious & Ors JUDGMENT 1 HIS HONOUR: This is an application by the plaintiff for summary judgment against the first and second defendants for an amount of $21,607.84 plus interest from January 1991. Application is also made to restrain the third defendant from releasing moneys to the first and second defendants. It appears that the third defendant is the receiver of the company from which the first and second defendants may be entitled to payment of a dividend in the receivership. 2 The proceedings were commenced by the filing of a summons on 19 March 1991. The only relief claimed against the first and second defendants in the summons was an order for the payment of costs. The third defendant, Advance Bank of Australia Ltd, was joined, it appears, only to seek orders restraining it from dealing with moneys which may have been paid to it by the first defendant. The plaintiff's substantive claim was a claim against the first defendant. 3 In a judgment of 4 April 1991, Bryson J (as his Honour then was) said that the plaintiff's affidavit showed that she had a prima facie case that she had paid to or for the benefit of the first defendant three sums totalling $21,607.84 during the course of their de facto relationship. In her affidavit in support of the summons, the plaintiff deposed that she and the first defendant had such a relationship from September 1989 until March 1991. His Honour said that a further affidavit tended to show that the plaintiff had a further money claim against the first defendant for an amount of $7,000. 4 Bryson J held that it was appropriate to grant Mareva protection in respect of the sums of money to which the plaintiff had put her oath. His Honour ordered that by 5 April 1991, the first defendant pay to the plaintiff's solicitors the sum of $21,607.84. He directed that the solicitors hold the moneys paid under that order and interest thereon in a separate account until further order of the court. 5 On 2 April 1991, the plaintiff's then solicitor filed a notice of ceasing to act. On 20 May 1991, another solicitor who the plaintiff had apparently retained also filed a notice of ceasing to act. On 24 May 1991, there was filed a document entitled Consent Orders. This was signed by the plaintiff and, it seems, the first defendant. 6 The document was partly typed and had handwritten alterations to it. As altered by hand, it provided for consent orders to be made that the plaintiff be granted leave to discontinue proceedings and that the money paid to the plaintiff's solicitor on 5 April 1991 by the first defendant, being $21,607.84 plus interest, be paid out to the first defendant. 7 The order lodged on 24 May 1991 was returned by the Registrar to the plaintiff on 28 May 1991 for re-engrossing and for the first defendant to sign the document and to file a notice of appearance. 8 A further document was filed, signed by the parties, entitled Consent Orders on 20 June 1991. It provided that the plaintiff be granted leave to discontinue the whole of the proceedings. It provided that the money paid into the plaintiff's solicitors' account of $21,607.84 with interest be paid out to the first defendant. The first defendant stated that he consented to the discontinuance. 9 So far as the file reveals, no notice of discontinuance has been filed. However, it appears that on the face of the documents of May and June 1991, the parties then intended that the proceedings would be discontinued and orders were made by consent on that basis.