Ayoub v The Recyclers & Anor [2019] NSWSC 1508

Supreme Court New South Wales

Medium Neutral Citation: Ayoub v The Recyclers & Anor [2019] NSWSC 1508 Hearing dates: 14 & 15 October 2019 Decision date: 05 November 2019 Jurisdiction: Equity - Expedition List Before: Sackar J Decision: See para [48] Catchwords: JUDGEMENT – set aside judgement on basis of fraud – agreement to disadvantage a litigant Legislation Cited: Evidence Act 1995 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 The Recyclers (NSW) Pty Ltd v Ayoub [2017] NSWSC 844 The Recyclers (NSW) Pty Ltd v Ayoub (No 3) [2016] NSWSC 576 The Recyclers (NSW) Pty Ltd v Ayoub (No 5) [2016] NSWSC 864, The Recyclers (NSW) Pty Ltd v Ayoub [2016] NSWSC 144 Watson v Foxman (1995) NSWLR 49 Category: Principal judgment Parties: Michael Hannah Ayoub (first plaintiff) The Recyclers (NSW) Pty Limited (first defendant) Aus Wide Recycling Pty Ltd (second defendant) Representation: Counsel: K Tang (15 October) (plaintiff) M Condon SC (defendants)

Solicitors: Mr Ayoub (self represented) Access Law Group (defendants) File Number(s): 2018/290877

Judgment

Procedural Background 1. By Statement of Claim filed 23 November 2018, Michael Ayoub (the plaintiff) sought that the various orders of Justice Ward CJ in Eq and Justice Stevenson be set aside. Those orders related to various proceedings between the plaintiff and The Recyclers (NSW) Pty Ltd and Mr Stewart (together the defendants) and other associated parties. 2. Briefly, those proceedings heard across 2015 and 2016, related to the disputed possession and interest in certain properties. In October 2015, Darke J appointed Mr Donnelly, solicitor, to act as the plaintiff's tutor for the purpose of the proceedings. Ultimately, judgement was awarded against Mr Ayoub, and his various claims were dismissed. Essentially, Mr Ayoub sought to set aside the previous decisions of Justice Ward and Justice Stevenson and re-agitate the substance of the matter. 3. Mr Ayoub sought to set aside judgement primarily on the basis that Mr Donnelly had not acted reasonably in the proceedings and further had entered into an agreement whereby money would be paid to Mr Donnelly after the defendant had obtained judgement against the plaintiff. The inference being that Mr Donnelly had agreed to conduct the case to the advantage of the defendant at a time when he was acting as tutor and solicitor for Mr Ayoub. 4. On 15 March 2019, the defendants filed a notice of motion seeking an order pursuant to rule 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) for the separate determination of a question as well as an order that if the separate question was answered in the negative, the proceedings be dismissed. 5. On 26 March 2019, I ordered that the following question be determined separately from, and in advance of, the hearing of the other questions raised in the proceedings: Did Mr Donnelly make the agreement alleged in paragraphs 25 and 27 of the statement of claim filed in these proceedings in respect to his conduct as tutor or solicitor in Supreme Court proceedings 2015/00299325? 1. The solicitor for Mr Ayoub at that time, conceded that the proceedings must be dismissed if the question is answered in the negative (Transcript of 26 March 2019, 33-34). 2. At this time I also ordered a stay against those other associated parties who were parties in the substantive proceedings but about whom no allegations were currently made. 3. The matter was then set for hearing on 6 and 7 May 2019. On the morning of 6 May I was informed by Mr Ayoub that he had terminated the retainer with his solicitor. I gave an adjournment for Mr Ayoub to seek legal advice and fixed the matter for 14 and 15 October 2019. 4. The matter was heard on 14 and 15 October. On the morning of 14 October, the new solicitor for Mr Ayoub informed me that his retainer had also been terminated. Mr Ayoub then appeared in person and cross-examined Detective Senior Constable (DSC) Simpson, Mr Donnelly and Mr Ellicott. Overnight, Mr Ayoub instructed counsel. Mr Tang appeared for Mr Ayoub on 15 October and cross-examined Mr Stewart.