Supreme Court New South Wales Medium Neutral Citation: Fadi Adeeb v Christopher Adeeb Alali [2013] NSWSC 312 Hearing dates: 04/04/2013 Decision date: 04 April 2013 Jurisdiction: Equity Division Before: McDougall J Decision: Plaintiff to pay second defendant's cost on the indemnity basis - papers to be referred to the Department of Public Prosecutions. Catchwords: COSTS - indemnity costs - uncontroverted evidence that affidavit in support of summons was false in material respects - abuse of process. Category: Procedural and other rulings Parties: Fadi Adeeb (Plaintiff) Christopher Adeeb Alali (First Defendant) Leila Alali (Second Defendant) Representation: Counsel: T P Orlizki (Solicitor) (Plaintiff) PT Newton (First Defendant) N Wahhab (Solicitor) (Second Defendant) Solicitors: Kent Attorneys (Plaintiff) John Spence and Associates (First Defendant) York Family Law Pty Ltd (Second Defendant) File Number(s): 2013/93999 Judgment (ex tempore - revised 5 april 2013) 1HIS HONOUR: The plaintiff commenced these proceedings seeking, among other things, a declaration that a loan agreement said to have been made between him and the first defendant was valid, and a declaration as to the indebtedness of both defendants to him. The plaintiff sought also an extension of a caveat. 2In support of his application, the plaintiff swore an affidavit. That affidavit said at para 8 that there was a loan agreement made on 26 June 2009. A copy was annexed as annexure H. In paras 9 and 10 the affidavit said the plaintiff made two statutory declarations, respectively annexures J and K, on 26 June 2009. 3The caveat, which was ill drafted, claimed a "financial interest" in the land by virtue of a "financial agreement", the date of which was unspecified, but the parties to which were said to have been the parties to the present proceedings. It stated further that the plaintiff had loaned an amount of $360,000 towards the renovations and improvements to the land, reflecting in the alleged financial agreement. 4It is common ground today that the plaintiff should have leave to discontinue. As between the plaintiff and the first defendant, that leave is to be granted on the basis that there be no order as to costs. 5However, the second defendant seeks her costs, and on the indemnity basis. The plaintiff is prepared to pay the costs but not, it appears, on the indemnity basis. 6In support of the application for indemnity costs, the second defendant relies on her affidavit sworn 3 April 2013. That affidavit was read without objection and there was no evidence offered in response. It made two substantial points. 7The first point made was that the loan agreement said to have been made in June 2009 (26 June 2009 according to the plaintiff's affidavit) could not have been made then. The second defendant referred to the fact that an amortising schedule attached to the agreement had a copyright notation claiming copyright "2002-2013". The claim was made by someone known as lawdepot.com. 8Secondly, and as to the statutory declarations, the defendant notes that the durat clause - the form of attestation - is in the form that has been used since 1 May 2012. That is a form which was introduced so as to ensure that the justice of the peace who takes the declaration is able to satisfy himself or herself that the person making the declaration is the person named in it. They are the identification requirements. 9In this case, as the second defendant points out, although the declarations are said to have been made on 26 June 2009, the durat clause is that which came into existence and effect only three years later (give or take two months). 10In those circumstances, the second defendant says there is reason to think that the plaintiff has sworn falsely in relation to the core documents on which he based his claim. In my view the second defendant's evidence is capable of giving rise to that inference. 11It is undesirable that I make any finding of fact as to the matter. I do, however, note that the uncontroverted evidence of the second defendant, if accepted after a contested hearing, would lead to the conclusion that paras 8, 9 and 10 of the plaintiff's affidavit sworn 27 March 2013 were false insofar as they assert that the loan agreement and the two statutory declarations were made, as the plaintiff swore, on 26 June 2009. 12In those circumstances, it seems to me there is a basis for concluding that the proceedings were an abuse of the Court's processes. I do not know how else to characterise proceedings commenced on the basis of what, on the face of things, can be characterised as false evidence. 13Mr Orlizki, for the plaintiff, submitted that notwithstanding the matters to which I have referred, it had not been shown that there was some relevant delinquency. I do not agree. I find it hard to imagine any delinquency greater, in extent, than that apparent on the face of the second defendant's affidavit. Given that it goes to the very basis of the plaintiff's claim, I fail to see how it could be anything other than relevant. 14The second defendant sought also an order that the papers be referred to the Attorney General - in truth, I think the Director of Public Prosecutions. In circumstances where there is, it seems to me, prima facie evidence of the offence of false swearing, I think it is appropriate that the proceedings are further investigated. 15For those reasons I make the following orders: 1. I note para 1 of the short minutes of order initialled by me and dated today's date. 2. I make orders in accordance with paras 2 to 5 of that document, which I note include an order for entry forthwith. 3. I order that the costs payable by the plaintiff to the second defendant be assessed on the indemnity basis. 4. I direct the Principal Registrar of the Court to refer the papers, including my reasons when revised, to the Director of Public Prosecutions. ********** 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. Decision last updated: 09 April 2013