Ahmed v Ahmed

Court of Appeal (NSW)|2023-03-16|Before: Ward P, Adamson JA, Adam P, Hammerschlag CJ

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

JUDGMENT

WARD P: By summons dated 29 September 2022, the applicant, Mr Turan Ahmed, seeks leave to appeal from orders made on 26 July 2022 by Hammerschlag CJ in Eq, summarily dismissing proceedings commenced by the applicant against his estranged sister, Ms Ziynet Ahmed (the respondent to the present application) (see Ahmed v Ahmed [2022] NSWSC 1003, the primary judgment). In those proceedings, the applicant was seeking an interim injunction to prevent the lapse of a caveat that had been lodged in his name over a property in Woy Woy, New South Wales, registered in the name of the respondent.
The caveat in question, purporting to be lodged by the applicant (though the applicant contends that it was falsely lodged on the title to the property as part of an overarching fraud and conspiracy perpetrated on him by his sister, in collusion with various others including their late mother), claimed a one half estate or interest in the land "as a joint and equal contributor with the registered proprietor to the purchase of the said land and the improvements thereon". The respondent had served a lapsing notice in respect of the caveat to enable the sale of the property.

Background

As adverted to above, the statement of claim filed on 20 December 2021 in terms sought an order for an interim injunction against the application for lapse of caveat. There was no pleaded claim, as such; rather, the document referred to an evidence file, witness statement and "skeletal argument".
On 25 February 2022, the applicant was directed to file and serve an amended statement of claim compliant with the Uniform Civil Procedure Rules 2005 (NSW).
On 8 July 2022 , the primary judge refused the applicant (who is and was then self-represented, and who resides in the United Kingdom) leave to conduct the proceedings by video link (see Turan Ahmed v Ziynet Ahmed [2022] NSWSC 921, the AVL judgment) on the basis that the claims proposed to be raised by the applicant involved allegations of fraud, which had not been articulated specifically and with particularity and, if the applicant were to conduct the hearing in a manner which did not meet the ethical requirements which apply to legal practitioners, the ability of the court to control its own processes would be diminished by the fact that the applicant was beyond the court's reach. Moreover, the primary judge considered that the court would have no control over whom or what was in the room with the applicant during cross-examination. (On the present application the applicant, who appeared in person, maintained that he had not made any application for the proceedings to be conducted by video link but it may be that the applicant was there referring to what had occurred on 26 July 2022 not on the earlier occasion the subject of the AVL judgment.)
It may here be noted that allegations of fraud are serious allegations, not lightly to be made, and that they must be properly pleaded. In the AVL judgment, the primary judge at [38] expressly referred to the possibility that if the applicant had not complied with the requirement for the filing of an amended statement of claim that complied with the rules by the hearing then the Court might consider dismissing the proceedings pursuant to s 61(3) of the Civil Procedure Act 2005 (NSW). No amended statement of claim had been filed and served prior to the hearing on 26 July 2022.
On 3 June 2022, the proceedings were listed for final hearing to commence on 26 July 2022 with an estimate of two days, having been fixed for hearing by the Registrar in Equity. A modified usual order for hearing was made by the Registrar on 3 June 2022.
The applicant had been directed to serve any further evidence by 18 May 2022. By letter dated 10 July 2022 the applicant provided a "Court Book of Material Evidence" (to which the primary judge had regard - see the primary judgment (at [9])) and then a further document on 18 July 2022 with references to the Court Book.
Following communications by the applicant to the Court on 19 July 2022 in which the applicant requested a postponement of the hearing, on 22 July 2022 the applicant filed electronically a notice of motion seeking an adjournment of the hearing (together with a statement to which the primary judge referred at [14]-[15] of the primary judgment).
On 26 July 2022, the primary judge heard oral submissions on the adjournment application from the applicant (appearing on zoom) and the respondent (who was present in the courtroom). His Honour then gave an ex tempore judgment refusing the adjournment application (for the reasons explained below) and proceeded to dismiss the proceedings, discharging an order that had been made on 23 December 2021 extending the caveat and ordering the applicant to withdraw the caveat within seven days (with provision for it to be removed by the Registrar if the applicant failed to withdraw it).
The primary judge (at [18]) indicated that, had the only issue on the adjournment application been an externally caused inability to travel to Australia (as opposed to reluctance, inconvenience or neglect to make timeous travel arrangements) and had he been persuaded that the applicant would travel to Australia for an adjourned fixture, he might have adjourned the proceedings but was not satisfied as to either of those matters. His Honour went on to say (and attached more weight to this on the adjournment application) that he was not persuaded that the case would ever be in a position in which the Court would be able to adjudicate it (see at [19]-[20]), having regard to the applicant's previous conduct of the case and the applicant's apparent intention to formulate a conspiracy and fraud claim (and to prepare the necessary pleading himself).
His Honour dismissed the proceedings having regard to the facts that the applicant was not present in Court (his application to appear by AVL having been refused) and that the adjournment application had been refused ([22]). Pertinently, for present purposes, his Honour recorded an undertaking by the respondent to the Court that 50% of the proceeds of sale of the land would be paid into Court or at the applicant's direction ([23]).
The applicant refers to an application for a stay that was then sought to be brought before Lindsay J as duty judge in equity, following which the applicant submitted a notice of intention to appeal (the applicant says that he did this on 4 August 2022) which was apparently not accepted for filing. A Notice of Intention to Appeal was then filed on 12 August 2022. By email on 4 October 2022, the applicant forwarded to the Registry a summons seeking leave to appeal dated 29 September 2022, draft notice of appeal dated 4 September 2022 and an electronic version of the White Book.

Draft Notice of Appeal

The draft notice of appeal does not identify appeal grounds as such (though some latitude must be afforded to the fact that the applicant has not had the benefit of legal representation) but, rather, appears to contest the orders made on 26 July 2022 by reference to the grounds on which the proceedings were summarily dismissed (referring to the failure to file an amended claim by 8 April 2022 and 26 July 2022 and the failure to attend Court on 26 July 2022), in respect of each of which the draft notice of appeal refers to "provision of Fresh Unheard Evidence".
As to the first of those matters (the pleading issue), the draft notice of appeal describes this "Fresh Unheard Evidence" as being "existent prior to hearing yet erroneously omitted". As to the second of those matters (the attendance issue), it is said that the evidence was available shortly after the hearing from an independent source. In oral submissions on the present application, the applicant referred to documentation concerning matters relating to an inability to lodge documents with the court and difficulties in relation to travel to Australia in the relevant period. It seems therefore that the applicant is seeking to show not so much that the factual basis on which his Honour concluded that the proceedings should be dismissed was in error but that there was an explanation for those matters (and hence to seek to revisit the decision summarily dismissing the proceedings by reference to this additional information).
The draft notice of appeal sets out a series of orders sought, including an extension of time for the filing of the summons seeking leave to appeal (although in oral submissions at the hearing of the application the applicant maintains that this is not necessary and that the summons was filed within time); an extension of time for the filing of the notice of appeal; special leave for provision of fresh evidence; that the judgment be overturned, and a "stay of proceedings of Lower Court … (Restitution of Caveat [xxx])". In other words, the relief sought includes the reinstatement of the caveat that was withdrawn or removed on his Honour's orders.
In support of his application for leave to appeal, the applicant filed a supporting affidavit sworn 22 February 2023, together with a bundle of material relied on as evidence (forming the bulk of the White Folder that was before the Court).
In his written summary of argument, the applicant sets out the nature of his case, including that he seeks to demonstrate a sophisticated property fraud (including conspiracy to defraud), concerning his own property in the United Kingdom and the respondent's property in Australia, both of which he contends are subject to "Paternal-Plaintiff Trusts". In that written summary, the applicant identifies the primary grounds for leave as being: Contest with Fresh Evidence (via Special Leave) the Ruling and Order of 26.07.2022 predicated on court's reasoning that the Plaintiff had: 1. Failed to File an Amended Statement of Claim as required by Judge's Directions of 24.02.2022 and Order 03.05.2022 2. Failed to Attend Court in Person for Hearing 26.07.2022 as required by Judge's Order 3. Preferred use of AVL instead of personal attendance, for convenience
From this, it appears that the applicant seeks to explain both the reason for his inability to file an amended statement of claim within the time required and his inability to attend Court in person on 26 July 2022; as well as to explain that he sought the use of AVL for the hearing as a matter of convenience on the basis that it was the "only alternative method to ensure scheduled Full Hearing took place; with realisation that macro-level problems of the emerging 'UK Travel Crisis' (and its consequential effects on new passport issuance and airline capacity, so ticket availability and raised pricing) would inevitably negate ability to fly and so ability to attend court in person". The applicant does not identify any errors in the primary judge's summary dismissal of the proceedings as such.
The written summary then sets out a list of further grounds for appeal, which seek to demonstrate the importance of a number of matters, including matters relating to proceedings apparently on foot in the United Kingdom, allegations of collusive involvement by the respondent's solicitors "to execute UK-Australia property fraud", and the assertion that the caveat was "misrepresentative" to "Mimic so Conceal Fraudulent UK Property co-ownership".

Determination

Although the orders made on 26 July 2023 have the effect of summarily determining the proceedings on foot in the Equity Division, leave to appeal is required pursuant to s 101(2)(l) of the Supreme Court Act 1970 (NSW) (see, for example, TFM Epping Land Pty Ltd v Decon Australia Pty Ltd [2020] NSWCA 93 at [8] per Basten JA, with whom Meagher JA and Emmett AJA agreed; Donaldson v State of New South Wales [2020] NSWCA 329; AB v State of New South Wales [2014] NSWCA 243).
While there are not exhaustive or rigid rules of practice or criteria governing the grant of leave to appeal (Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39 at 177 per Gibbs CJ, Aickin, Wilson JJ and Brennan J, as his Honour then was), leave should only be granted where there are there are substantial reasons to allow an appellate review (Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572; (2000) 104 FCR 564), such as where there is an error of principle which results in substantial injustice (Minogue v Williams [2000] FCA 125; (2000) 60 ALD 366; BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 756; Niemann v Electronic Industries Ltd [1978] VR 431; Darrell Lea (Vic) Pty Ltd v Union Assurance Society of Australia Ltd [1969] VR 401).
More recently, in Secretary, Dept of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206, Gleeson JA (with whom Macfarlan and Payne JJA agreed) noted at [28] that it was well established that it is not sufficient merely to show that the trial judge was arguably wrong in order to warrant the grant of leave to appeal, what is required is "an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable" (see also Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[38] per Basten JA, with Tobias AJA agreeing).
In the present case, although not expressed as such, the challenge is in one sense predicated on the refusal of an adjournment of the hearing because it was consequent upon that decision, coupled with the failure to file an amended statement of claim that complied with the rules, that the proceedings were summarily dismissed in the absence of the applicant's physical attendance in court. The refusal to adjourn the hearing was a discretionary decision on a matter of practice and procedure and to warrant appellate interference with such a decision the applicant would need to demonstrate House v The King (1936) 55 CLR 499 error (a misapprehension of principle, a misapprehension of fact or law, a decision affected by extraneous or irrelevant matters, a decision that does not take into account some material consideration or a decision so manifestly unreasonable as to indicate some such error). Although the applicant is seeking to establish (by the fresh evidence he seeks to put forward) the reasons for his inability to amend his pleading within time and his inability to travel to Australia for the hearing (at least some of which could have been put before the primary judge on 26 July 2022), there is nothing to demonstrate any House v The King error on the material before the primary judge at the time.
As it is, as noted above, the applicant disavowed a challenge to the refusal to grant an adjournment but maintains his challenge to the summary dismissal of the proceedings on the basis of his explanation, by reference to the so-called fresh evidence, as to the matters on which the primary judge relied when dismissing the proceedings. In terms of public interest, the applicant maintains that it is a matter of general public importance on the basis that he has been subject to 23 years of the alleged fraud and says that if it could happen to him it could happen to anyone else.
Having considered the material now put forward by the applicant and his submissions, it cannot be concluded that this is an appropriate case for the grant of leave to appeal. Whatever broad ranging conspiracy or fraud that the applicant seeks to expose (and the applicant was visibly distressed at the injustice he sees as having been perpetrated on him), the proceedings summarily dismissed were instituted to prevent the lapse of a caveat over the respondent's property, which caveat the applicant is adamant was not lodged by him (indeed was lodged as part of a sophisticated property fraud). Indeed the applicant does not appear to claim a 50% equitable interest in the subject property. Rather, he contends that it was subject to a trust rendering it inalienable (though he also asserts a small (7%) contribution by him to the purchase price and says that he has made other contributions to the benefit of the respondent over the years).
The applicant seeks to have the caveat reinstated because he believes it is necessary as a "live item of evidence" in order to support his conspiracy/fraud case (i.e., the case that has not yet been pleaded). That is not a sufficient reason to maintain a caveat that the applicant himself denies having lodged and in respect of which he appears to disavow the caveatable interest there claimed. If it be relevant in other proceedings to establish that the caveat was fraudulently lodged, the fact that it has since been removed by order of the Court will not affect the evidentiary record showing that it was once so lodged.
Moreover, there is no perceivable prejudice to the applicant in the order for the withdrawal of the caveat in circumstances where the interest claimed in the (allegedly fraudulently lodged) caveat was a 50% interest in the property (an interest that the applicant now does not appear to assert) and his Honour accepted the respondent's undertaking to the Court that a 50% share of the net proceeds of sale will be preserved.
No issue of general principle or public importance arises in relation to the summary dismissal of the caveat proceedings (whatever may be the case as to the underlying dispute as to the alleged fraud, which, as already noted, has not been pleaded). There are other avenues available to the applicant to pursue any allegation of fraud than proceedings to restrain removal of a caveat that the applicant denies having lodged. Similarly, whatever be the position in relation to the proceedings on foot in the United Kingdom is not relevant to whether leave should be granted to appeal from the summary dismissal of the proceedings in the Equity Division.
Accordingly, to the extent necessary, an extension of time for the filing of the summons for leave to appeal should be granted and the summons for leave to appeal should be dismissed with costs.
ADAMSON JA: I have had the benefit of the draft reasons of Ward P. I agree with the orders proposed by her Honour, substantially for the reasons given by her Honour. It is of significance that, notwithstanding several directions requiring the applicant to file a pleading which met the requirements of the Uniform Civil Procedure Rules 2005 (NSW), he has not done so. The allegations of fraud which the applicant has made, both in writing and orally, are matters which were required to be pleaded. Like Ward P, I discern no error in the primary judge's consideration of the matter. No issue has been raised which would warrant a grant of leave to appeal, having regard to the principles summarised by her Honour.

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: 22 March 2023

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