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. 10 The plaintiff says in her affidavit in support of the present notice of motion that she was forced to discontinue the proceedings under duress and extensive pressure from the first defendant, and that she also did so on the basis that he had promised that he would to repay the money. 11 If the proceedings were brought to an end by the consent orders made in 1991, then the plaintiff's cause of action for the $21,607.84 for which she seeks summary judgment is now statute barred. If the proceedings were not brought to an end in May and June 1991 and if the plaintiff's consent to a settlement can be set aside, it may be possible for her to pursue her original claim. However, the first defendant could be expected to seek a permanent stay of the proceedings after the lapse of time. 12 This is not a case for summary judgment. In his judgment of 4 April 1991, Bryson J observed that the plaintiff's claims had not been well formulated, and that she appeared to claim as a creditor in respect of some money payments but also in respect of some adjustments under the De Facto Relationships Act 1984 (NSW). His Honour said it was very desirable that a more considered statement of the basis of her claim should be made and that the litigation should proceed on pleadings. 13 There was no appearance by the first defendant to the present application. However, there was evidence in the form of an unsworn statement that he had been served. The basis for relief against the second defendant is not apparent. There was no evidence that the second defendant had been served and I was told that the only basis for saying that she had been served was that her brother, the first defendant, had been served. 14 I am concerned as to whether the application brought by the notice of motion was properly commenced. Rule 7.14 of the Uniform Civil Procedure Rules 2005 (NSW) provides that a person under legal incapacity may not commence or carry on proceedings except by his or her tutor. The expression "person under legal incapacity" is defined in s 3 of the Civil Procedure Act 2005 (NSW). The definition in s 3 is not an exclusive definition. In Div 4 of Pt 7 the expression "person under legal incapacity" includes a person who is incapable of managing his or her affairs. That concept was considered by the Court of Appeal in Murphy v Doman (2003) 58 NSWLR 51. 15 There is on the court file an affidavit of a Mr Pascal Ibrahim sworn 1 April 2007. He deposes that he is the plaintiff's son and that he was appointed on 30 March 2007 by the District Court to be the plaintiff's tutor in proceedings commenced by her in that court. He exhibits to his affidavit a copy of the judgment of Balla J of 30 March 2007. After referring to medical evidence adduced on that application, including a diagnosis that the plaintiff suffers from untreated schizophrenia, characterised by delusions, hallucinations and disorder of thought, her Honour concluded that the plaintiff was and continued to be under a legal incapacity. Accordingly, her Honour appointed the plaintiff's son as her tutor to conduct the proceedings in the District Court. 16 In his affidavit of 1 April 2007, Mr Ibrahim expressed concern that the plaintiff should have commenced the proceedings in the Supreme Court. He requested leave to discontinue proceedings in the Supreme Court and that no order for costs should be made against the plaintiff in relation to the proceedings. 17 There is no application before me today for the appointment of a tutor to the plaintiff. However, having regard to the judgment of Balla J of 31 March 2007, there must be at least a serious question as to whether the present application is regular. In any event, it is quite clear that the plaintiff is not entitled to summary judgment as claimed in her notice of motion. There is real doubt as to whether the application has been properly commenced. As the plaintiff's tutor in the District Court proceedings would not in any event wish to pursue the present application, the appropriate order it seems to me is that the notice of motion be dismissed. 18 There was no appearance by any defendant to the application. Accordingly, I order that the plaintiff's notice of motion of 27 March 2007 be dismissed with no order as to costs. 19 The exhibits may be returned. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.