Amirbeaggi v AAI Limited

Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56–60

Cases Cited: Aon Risk Services Aust Ltd v ANU (2009) 239 CLR 175; [2009] HCA 27
Australian International Aviation College Pty Ltd v Zheng [2025] NSWCA 190
Dawson as liquidator of J R Line and Safety Services Pty Ltd (in liq) v Alam [2020] NSWSC 1679
Halpin v Lumley [2009] NSWCA 372
Richards v Conford (No. 3) [2010] NSWCA 134
The Owners – Strata Plan No. 74602 v Brookfield Australia Investments Ltd [2015] NSWSC 1144
The Owners – Strata Plan No. 94784 v Mirvac Projects Pty Ltd [2024] NSWSC 741

Texts Cited: Nil.

Category: Procedural rulings

Parties: Farshad Amirbeaggi (Plaintiff)
AAI Limited t/as Suncorp Insurance (Defendant)

Representation: Counsel:
D Talintyre (Plaintiff)
S Ahmed (Defendant)
Solicitors:
YPOL Lawyers (Plaintiff)
Mills Oakley (Defendant)

File Number(s): 2023/00235327

Publication restriction: Nil.

JUDGMENT

(This is an edited version of reasons delivered orally in Court on the day of the hearing.)

Introduction

1. This proceeding, which commenced in October 2023, concerns an indemnity dispute between the insurer, AAI, and the insured, Mr Amirbeaggi. Mr Amirbeaggi is a solicitor. He started his career in the law in 1996. He was a founding partner of a firm commencing practice in 2004; having been employed by a different firm for two years before that.

2. The dispute followed a significant storm event that occurred in Sydney in February 2022. Mr Amirbeaggi brought a claim that the insurer was required to indemnify him for water damage to his residential home in Woollahra (the ‘residential premises’).

3. There is no dispute that following the institution of the proceeding, renovation works had occurred to the residential premises at Mr Amirbeaggi’s behest. The Insurer complains that that occurrence, in a pending proceeding, has prejudiced its defence in the insurance dispute and that it cannot receive a fair trial. By a motion it filed on 20 December 2024 (virtually the end of the Court term last year), AAI sought a permanent stay of the proceeding. Because of the time of year, and because of the scope of the evidence AAI sought to rely upon for its stay application, AAI had not completed service of its evidence as at the date its motion was filed. It was eventually given until 24 March 2025 to complete the service of its evidence on the stay application.

4. There is no dispute that on 10 April 2025, Mr Amirbeaggi was ordered to serve his evidence responding to the stay application by 20 June 2025. There is also no dispute that extensions of time were granted to him to serve his evidence by18 July 2025 (the first extension), and then 22 August 2025 (the second extension).

5. By 11 September 2025, Mr Amirbeaggi had still not complied with the timetable. On the same day, Judicial Registrar Howard remarked that Mr Amirbeaggi was not entitled to ‘run his own race’. This quip was apparently inspired by an observation made by Price AJA in Australian International Aviation College Pty Ltd v Zheng [2025] NSWCA 190 (“Zheng”) at [12] in a decision that I will return to later. At any rate, the Judicial Registrar directed that the parties appear ‘in person’ the next day.

6. On 12 September 2025, a guillotine order was made by consent. The cut-off date beyond which Mr Amirbeaggi would require the Court’s leave to rely upon evidence was 10 October 2025.

7. AAI’s stay application was scheduled to be heard today, 18 November 2025.

8. On 10 November 2025, Mr Amirbeaggi affirmed an affidavit. In summary, he purported to explain his default in complying with directions to serve his evidence (paragraphs 16–22 (incl) in particular). Secondly, he purported to respond to evidence served by AAI on its stay application (paragraphs 23–99 (incl)).

9. On 12 November 2025, AAI filed a new notice of motion. It applied for an order that Mr Amirbeaggi not be permitted to rely upon his 10 November 2025 affidavit (at all) or, alternatively, an order that the listing of the case for hearing of the stay application today be vacated.

10. Then, on 13 November 2025, Mr Amirbeaggi affirmed another affidavit. In this he explained the delay he took in responding to coercive court process(es) issued by AAI. It was unclear as to what extent, if at all, that affidavit would assist Mr Amirbeaggi in resisting the stay application.

11. When the proceedings were called this morning, Mr Amirbeaggi essentially accepted that if he was granted leave to rely upon his affidavit of 10 November 2025 (principally paragraphs 23–99 (incl)), the inevitable result would be a vacation of today’s listing of the hearing of the stay application. This acknowledgement appears partly to have been made in circumstances, confirmed by AAI’s Counsel this morning, that AAI, and more specifically its witnesses, needed a proper period of time to consider Mr Amirbeaggi’s 10 November 2025 affidavit and thereafter time to prepare evidence in reply for the stay application. Mr Ahmed, Counsel for AAI indicated that this would take at least a period of another four weeks. This reflected the period that was allowed for AAI (for evidence in reply) in earlier directions given by the Judicial Registrar.

12. I indicated to the parties that if the stay application could not be heard before 27 November 2025, then due to other judicial commitments, I would not be able to hear the stay application until March 2026.

Mr Amirbeaggi’s explanation for his default in complying with Court orders (including the guillotine order)

13. For most of the period since he founded his practice, Mr Amirbeaggi’s firm had between 15 to 30 staff. But this changed from about July 2023, when, with the exception of a non-legally qualified practice manager, he has practised alone. Mr Amirbeaggi deposed to referring most of his clients to other law practices, but retaining matters for clients who had been with him over significant periods of time (5–10 years).

14. Aside from his professional commitments, Mr Amirbeaggi has over the last 7 years at least been involved in many litigious disputes in which he has been a party; in different jurisdictions. He has retained YPOL Lawyers, his lawyers in this litigation, to represent and act in his interests in this personal litigation.

15. It emerged from his cross-examination (which was limited) that Mr Amirbeaggi was aware of the guillotine order and aware of the significance of a guillotine order being made on 12 September 2025, which was due to ‘fall’ on 10 October. Further, he appreciated that if he served evidence near, or close to the current hearing, it would likely mean that AAI would need time to consider its effect and, if appropriate, serve evidence in reply; which in turn would likely prompt its application to vacate today’s listing.

16. The crux of Mr Amirbeaggi’s explanation appears in paragraph 16 of his 10 November 2025 affidavit. He cited several reasons for his default. In summary they are:

17. The voluminous record he had to address in this proceeding;

18. Competing other client and court commitments (which are fleshed out in detail at paragraph 20 of his 10 November 2025 affidavit) from May 2025 to November 2025;

19. A personal illness from 17 October to 3 November 2025;

20. An ‘inundation’ of timetables, for evidence and appearances, for the litigation in which he is personally concerned throughout 2025 which had consumed a great deal of his time and distracted him for complying with the orders made in this proceeding; and

21. His difficulties in managing his practice since 2023; partly attributable to his underestimating the volume of personal litigation he would need to attend to.

22. As indicated, I allowed Mr Amirbeaggi to be cross-examined on the application to be permitted to rely upon his evidence. Some salient features of that cross-examination were:

(a) in addition to what he deposed to in his 10 November 2025 affidavit, there were yet other reasons which he chose not to divulge. I surmised that these were of a personal nature: Mr Amirbeaggi appeared somewhat shaken when touching upon the subject, even in the oblique way that this occurred; (b) in the part of his 10 November 2025 affidavit directed to his default, this part of the affidavit took approximately a day and a half for him complete; (c) he indicated that he could not rely upon the assistance of his lawyers in this proceeding to complete his evidence; (d) Mr Amirbeaggi’s apparent espousal of an attitude, apparently fostered by advices he received over the years from other lawyers (including barristers), that if he believed that he may not be able to comply with a timetable to serve his evidence, the expedient course for him was to do his best to complete and serve the evidence – even though the time for him to do so had expired – and thereafter for him to explain his default; in preference to an approach that would see him apply to the Court to re-list the proceeding and seek indulgences; (e) when explaining the ‘conflicting’ or competing other court appearances in paragraph 20, with the exception of those indications where he was in Court all day, he could not say whether he had the capacity to attend to preparation of his evidence in this proceeding after, for example, directions hearings; (f) his being shown affidavits he had prepared in other proceedings: in the Supreme Court (Exhibit B) and also in this Court (Exhibit C) in which he also provided similar explanations for default in complying with Court orders made in those proceedings.

18. In an exchange with Mr Amirbeaggi’s Counsel, it was suggested that if he was not allowed to read his 10 November 2025 affidavit, his Counsel reserved for himself the right to read an affidavit that Mr Amirbeaggi prepared in 2024 in the substantive proceeding (prior to the bringing of the stay application). In response to this, AAI’s Counsel indicated that the parties had been ordered to serve the evidence that they intended to rely upon for the stay application, and no prior notice had been given on Mr Amirbeaggi’s behalf that his affidavit evidence from 2024 would be relied upon.

Parties’ arguments

19. I did not understand AAI to contend that what Mr Amirbeaggi said in the preponderant part of his 10 November 2025 affidavit was irrelevant or immaterial to the stay application.

20. Nor did AAI point to actual substantive prejudice that AAI would sustain if Mr Amirbeaggi was granted leave to rely upon the affidavit and, consequently, the hearing of the stay application would have to go over to next year.

21. AAI’s argument was that Mr Amirbeaggi’s default was not satisfactorily explained. The content of the explanation was not sufficient, nor comprehensive, and to some degree, it was not fully candid. This submission was tailored to principles enunciated by the recently retired Justice Stevenson in The Owners – Strata Plan No. 94784 v Mirvac Projects Pty Ltd [2024] NSWSC 741 (at [14]) (“Mirvac”).

22. To the contrary, AAI submitted that Mr Amirbeaggi’s approach to his compliance with Court orders manifested the belief, which has been repeatedly deprecated by the Court of Appeal, of determining the management of cases in which they are involved “in their own way and at their own speed”: Zheng at [12]. He did not explain why he could not spare a day and a half to explain his delay any earlier than 10 November after the guillotine order was made on 12 September.

23. AAI’s Counsel drew my attention briefly to the decisions, and curial observations, which Price AJA had referred to in Zheng. These were the decisions in Halpin v Lumley [2009] NSWCA 372 at [30] and Richards v Conford (No. 3) [2010] NSWCA 134 (“Richards”) at [106]–[107], [111]–[114] and [119]–[124] in particular.

24. AAI submitted, in effect, that Mr Amirbeaggi had sought to run his own litigious race and gambled that he would be allowed to do so by the Court, even at the price of being exposed to an adverse costs order flowing from any vacation of the hearing necessitated by allowing him to read the evidence. This was contrary to modern case management principles, and his own obligation, as a litigant, under s 56(3) of the Civil Procedure Act 2005 (NSW). Adopting such approach, he could not complain if he was ‘shut out’ from being able to rely upon material evidence that aided his case which itself could operate to his substantial detriment in the underlying dispute. It was pointed out, specifically, that this type of approach was ‘corrosive’ of procedural justice: if his approach was tolerated it would or could impede the management of other litigants’ cases.

25. Mr Ahmed anticipated Mr Amirbeaggi’s reliance upon certain cases in the latter’s Counsel’s written submissions (MFI 2): Dawson as liquidator of J R Line and Safety Services Pty Ltd (in liq) v Alam [2020] NSWSC 1679 at [17] and The Owners – Strata Plan No. 74602 v Brookfield Australia Investments Ltd [2015] NSWSC 1144 (“Brookfield”) at [43]. About Brookfield, Mr Ahmed distinguished the circumstances in which leave to rely upon evidence was given: in Brookfield the application for leave was given during a long hearing and it was expected another party could deal with it.

26. Mr Amirbeaggi’s Counsel emphasised that his client was a natural person. His position was different to that of a well-resourced corporate defendant.

27. He accepted that Mr Amirbeaggi’s explanation was unsatisfactory, at least in terms of it timing. Nevertheless, that did not derogate from the underlying strength of the reasons provided. That was even if there was something of a lack of specificity in what was contained in paragraph 16 of his affidavit.

28. Mr Amirbeaggi emphasised that AAI did not point to any actual prejudice that it was likely to suffer should the proceeding go over into 2026, as it inevitably would, if leave was granted. He accepted that Mr Amirbeaggi would likely need to wear an adverse costs order: this indication was given apparently last week.

Discernment

29. Acknowledging the assistance that other authorities, especially those at the intermediate appellate court level might give, ultimately, for procedural applications of this kind, the exercise of discretion turns upon the application of statutory principles and considerations in ss 56–60 according to the unique facts of the cases. Judicial decisions on the exercise of discretion, although illuminating, are not a substitute for the application of the facts to the statutory provisions.

30. I take into account the overriding case objectives in s 56, fleshed out somewhat in s 57(1). I also take into account the circumstance that it is inherently unsatisfactory that an application brought in late 2024 may not be determined until early 2026, depending on the decision I make.

31. In relation to s 57(1)(b) and (c), I observe that when matters are set down for hearing, that may practically impede the resolution of other matters in any court list, as the time slots for scheduling for hearing become filled.

32. Particularly important however, is the Court’s evaluative assessment of where the “interests of justice” lies, through the lens of the matters in s 58(2)(b) of the Civil Procedure Act, where they arise.

33. I am prepared to accept that on a stay application, the factual enquiry may, as here be dense. But Mr Amirbeaggi has been on notice of the application, and what evidence AAI relies upon, since March 2025. Plainly, he has not acted with reasonable despatch in circumstances where court timetables have been extended for his benefit and, more significantly, a guillotine order imposed. Relevant to this is that, as an experienced litigator himself, he cannot and does not claim ignorance of the importance to the Court that timetables and orders are complied with.

34. To paraphrase what Allsop P said in Richards, this is not efficiency for efficiency’s sake. I must confess to disquiet at Mr Amirbeaggi’s apparent espousal of the approach when it is anticipated that he will not be able to meet a deadline. It is apt in my view, to put coercive pressure on the Court to accept explanations for default in the expectation that the Court will not dare to shut out a litigant from relying upon material evidence. Such an approach has been rejected by the High Court in the decision of Aon [1] which preceded the enactment of ss 56–60 but which remain influential. Bluntly put, Aon and subsequent authorities indicate that the access that parties have to courts to resolve their disputes confers opportunities for them to present their cases and arguments, but that is not of an unlimited kind. Further, a court’s management of litigation should not be held hostage to the convenience of a party.

35. I do not find convincing Mr Amirbeaggi’s protestation that he does not have the capacity or resources to attend to his obligations in litigation in which he is a party. Whatever be his ‘lifestyle’ reasons for downsizing staff at his firm, this has been his situation, it appears, for over 2 years. Moreover, for what it is worth, it has not been suggested that his predicament is other than the product of discretionary choice. In particular, he does not suggest that he does not have the financial or administrative resources to help him attend to his obligations. Further, all litigants actually or are taken to appreciate when commencing or defending litigation, that the process is time-consuming, arduous and expensive; as well as distracting from their daily activities. Litigants who happen to be sole practitioner lawyers do not have some special privileged dispensation in this regard.

36. Nor do I find all that convincing reliance upon the fact that is a natural person battling against a well-resourced corporate opponent. This is not a case of the kind that Allsop P alluded to in Richards of a natural person being a reluctant conscript to litigation. Mr Amirbeaggi commenced this suit about a matter affecting his commercial interests. As Heydon J adverted to in his concurrence in Aon, at [137], there is public interest in commercial disputes being resolved expeditiously. This was a matter also recognised by Stevenson J in the Mirvac decision I referred to when his Honour referred to the matter being in the Technology and Construction List of the Supreme Court. Commercial litigation in this Court is also expected to run with prompt despatch.

37. In short, the explanation that Mr Amirbeaggi has given is unconvincing.

38. I take into account the degree of injustice that would be suffered by the parties as a consequence of what I do. I accept that Mr Amirbeaggi would not be able to rely upon detailed evidentiary matters he would wish to put in opposition to a serious application against him. As I have indicated, it is unnecessary, and it would be inappropriate for me, to say anything further about the merits of the evidence he wishes to rely upon.

39. Particularly in view of his experience as a litigator, and the appreciation of the need to comply with court orders, in my opinion, Mr Amirbeaggi has not fulfilled his obligation under s 56(3) of the Civil Procedure Act.

40. However, to say again, the Court recognises the seriousness of AAI’s stay application, and the factually intense nature of the inquiry. The Court would, in principle, be inclined to receive Mr Amirbeaggi’s evidence; belated as it was. It would be a very serious thing for the Court, when determining the stay application, to not have the benefit of Mr Amirbeaggi’s side of the story, when that story has now been narrated.

41. Having regard generally to the case management objectives and the interests of justice, and with significant reservation, the Court is inclined to allow Mr Amirbeaggi to rely upon his evidence in his 10 November 2025 affidavit. He has now served the evidence he relies upon. It is not a case that any tangible prejudice will flow to AAI from the delay that will follow: it was not suggested, for example, that there are further renovations being undertaken which undermine AAI’s defence in the substantive proceeding. I take it from this that, from AAI’s perspective, the damage has been done.

42. In my view, the paramount consideration is that, so long as AAI has fair opportunity to respond to the evidence, as it will, and is compensated for any prejudice, as it will be, the adverse consequences to AAI and the Court’s general management of its list is outweighed by the consideration in s 57(1)(a) of the Civil Procedure Act, that the parties conduct the stay application be able to put forward their cases fully.

43. This will necessarily occasion the vacation of the hearing of the stay application, which had been scheduled to start earlier today.

44. I propose the following:

45. Vacate the hearing today of AAI’s stay application.

46. Adjourn the hearing of AAI’s stay application to 12 March 2026 at 9:30am before Abadee DCJ.

47. AAI is to serve evidence in reply on its stay application by 26 February 2026.

48. AAI is to file and serve an outline of supplementary submissions (not exceeding 10 pages) on its stay application by 26 February 2026.

49. Mr Amirbeaggi is to file and serve an outline of supplementary submissions (not exceeding 10 pages) on the stay application by 5 March 2026.

50. At the time of service of the parties’ submissions on each other, the parties are to email the submissions, in both PDF and word form, to the Associate to Judge Abadee.

51. Mr Amirbeaggi apparently accepts that he must bear the costs of the vacation application, including AAI’s costs thrown away. I will hear from AAI whether any special costs order is sought.

Postscript

46. The parties did not suggest any alteration to the proposed orders disposing of the motion (subject to costs).

47. After hearing the argument, the Court determined that Mr Amirbeaggi pay the costs of AAI’s notice of motion of 12 November 2025 on an indemnity basis.

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Endnote

Aon Risk Services Aust Ltd v ANU (2009) 239 CLR 175; [2009] HCA 27 (“Aon”).