44 By a Notice of Motion filed on 24 May Mr Chahwan sought to have set aside the orders which were made on 10 May. The Motion came on for hearing on 4 June.
45 Mr McKeand SC appeared for Mr Chahwan and skilfully advanced everything that could possibly be said in his favour. He informed me that Mr Chahwan now abandoned his claim that Euphoric participated in a breach of fiduciary duty in obtaining the mortgage over Lot 40. Mr Chahwan now wished only to pursue the claim that Bycoon holds Lots 39 and 40 upon a resulting trust for him and that Euphoric has no equitable mortgage over Lot 39.
46 In support of the Motion, Mr McKeand read a number of affidavits of Mr Diab. The first, dated 21 May 2010, purports to set out a record of Mr Diab's cross examination on 10 May. It is not an accurate record in some respects; the Court transcript correctly records what was said.
47 The most important insertion Mr Diab incorrectly makes in his record of his cross examination is to say that he paused for "about two seconds" before answering that he had taken a statement from Mrs Ayoub. The transcript records that, immediately after he had answered the question, I asked Mr Diab why he had hesitated so long before giving his answer. Mr Diab's hesitation was, in fact, far longer than two seconds - it was a very significant hesitation. From my observation, it was clear to me that Mr Diab was weighing up carefully how he would respond. He did not appear in the least flustered, nervous or under pressure. Indeed it has been a notable feature of all of Mr Diab's appearances before me in this matter - even when he was subjected to the criticisms which I have earlier recorded - that he remain unperturbed throughout, perhaps even to the point of nonchalance.
48 I make these observations as to Mr Diab's demeanour because in his affidavit he says that when he gave his answers in cross examination - and particularly when he paused "for about two seconds" - he "felt under pressure", which led him to forget about an affidavit which he had taken from Mrs Ayoub and filed in these proceedings on 22 March 2005.
49 I do not accept Mr Diab's evidence. It was clear from Mr Lucarelli's very precise questions - which Mr Diab had no difficulty in understanding - the Mr Lucarelli was asking whether Mr Diab had taken any witness statement in support of the claim that Euphoric was a knowing participant in Mrs Ayoub's breach of fiduciary duty. Mr Diab's answer, ultimately in the negative - after he had carefully considered his position - was in fact correct. Mrs Ayoub's affidavit filed on 22 March 2005 says nothing which could support Mr Chahwan's case against Euphoric for accessory liability for breach Mrs Ayoub's fiduciary duty.
50 Mr McKeand also read an affidavit of Mr Diab sworn 28 May 2010 in which Mr Diab gave pressure of work as a reason for delay in preparing the Plaintiff's evidence in these proceedings. He said that one solicitor in his firm, who was responsible for conveyancing and commercial work, left his employment on 12 April 2010 so that he had to take over conveyancing work between 12 April and 17 May. He said that another employed solicitor took leave from 19 April 2010, so that he had to do her work also. He said that, but for these departures, he would have been able to comply with the directions made on 6 April 2010.
51 In cross examination Mr Diab conceded that, when he consented to the directions made on 6 April, he knew that one solicitor was about to leave his employment and the other was to take leave, and he knew that he would be without the assistance of both solicitors during the time for compliance with the directions which were then to be made. Nevertheless, not only did he agree, in negotiations with the solicitor for Euphoric, to the timetable which was then ordered but he had also sworn an affidavit, when he knew of those staffing issues, saying that the proceedings were almost ready to take a hearing date.
52 I do not accept Mr Diab's explanations for the Plaintiff's failure to comply with the Court's directions made on 6 April. Further, Mr Diab gave no explanation why, in the nine years since the events in question, he did not take at least witness statements, let alone affidavits, from those in the Plaintiff's camp which could support the claim against Euphoric for accessory liability for Mrs Ayoub's alleged breach of fiduciary duty.
53 Mr McKeand submitted that, whatever may have been the reasons for the delay in the prosecution of Mr Chahwan's case up to 10 May 2010, Mr Chahwan's case was now in order and was ready to proceed. Substantial affidavits by Mr and Mrs Ayoub had been prepared and Mr Chahwan now wished to proceed with only two of his claims, abandoning a claim against Euphoric for accessorial liability.
54 Mr McKeand submitted that the Court, in the exercise of its discretion, should set aside the orders made on 10 May because: