Commonwealth Bank of Australia (ACN 123 123 124) v A.C.E.S. Sogutlu Holdings Pty Ltd

EX TEMPORE Judgment 1The point at issue in this application is whether, Mr Jamal Charara, is or is not a fourth cross-claimant in proceedings brought by the Commonwealth Bank of Australia against a number of defendants. The vehicle for the application is Mr Jamal Charara's notice of motion, in which he claims that on 2 October 2013 the Registrar in Equity wrongly ordered that the Court's Justice Link system be amended to record him as the fourth cross-claimant. 2He seeks review of the Registrar's order and to set aside the order. He says that he is not and never has been the fourth cross-claimant in the proceedings and that the Registrar's order should not have been made. 3The application, brought in the Court's Equity Applications List, is for review of the Registrar's decision under Uniform Civil Procedure Rules ("UCPR"), r 49.19. A review under Pt 49, r 19 of the UCPR is not an appeal and is not subject to the restrictions that apply to an appeal, although it is something less than a complete hearing de novo. The Court may intervene where a decision finally determines the parties rights or where error in the decision under review is demonstrated: Tomko v Palasty (No 2) [2007] NSWCA 369 at [6] - [10], and [50] - [52]. A person seeking to set aside or vary a Registrar's decision must make out a case that the Court conducting the review should exercise its discretion to do so in the interests of justice: Tomko v Palasty (No 2) [2007] NSWCA 369. 4I have reached the view in this case, for reasons I shall shortly explain that the applicant Mr Jamal Charara has not made out his case that the decision made by the Registrar should in any way be discharged or varied under UCPR r49.19. 5In my view everything that has been put before the Court confirms the correctness of the Registrar's decision. 6But first there was a preliminary issue about whether or not this application for appeal was out of time. The notice of motion was not filed within the requisite 28 days from the Registrar's decision, that is, by 20 October 2013. It was filed on 25 November 2013, that is 26 days beyond the time required by UCPR, r 49.22. 7I am not prepared to dismiss the application on this basis. I would grant leave for Mr Charara to move on his motion for review out of time. He is a litigant in person and I do not regard the period of delay as especially lengthy and no real prejudice has been pointed to by reason of the failure to file the motion 26 days earlier. In those circumstances, it is appropriate to deal with the substance of the matter, which I do. 8The important matter for primary consideration is that Young J has fully determined these proceedings on a final basis in Commonwealth Bank of Australia v ACES Sogutlu Holdings Pty Limited and others [2013] NSWSC 1184. And this application is made after a hearing before his Honour for three days on 27, 28 and 29 May 2013 and where his Honour gave judgment on 30 August 2013. 9It is self-evident from a reading of his Honour's judgment that his Honour assumed for the purposes of that hearing that, as paragraph 5 of his Honour's judgment clearly states, "Mr Jamal Charara was the fourth cross-claimant in the proceedings". 10His Honour's 30 August 2013 judgment fully sets out the relevant circumstances of the contest between the Bank and the defendant cross-claimants, which I need not repeat in this judgment: Commonwealth Bank of Australia v ACES Sogutlu Holdings Pty Limited and others [2013] NSWSC 1184. 11His Honour found that the cross-claim in the proceedings wholly failed and that the defendants' defences wholly failed and he entered a verdict for the Bank (at [74]). 12His Honour ordered that the cross-claim be dismissed or in the following terms: "[74] It follows that the cross-claim wholly fails, the defence wholly fails and there must be a verdict for the Bank. As at 1 May 2013 I was informed that with interest what was due was $132,858.18. There will be further interest from that day so that I will find a verdict for the plaintiff for that sum plus interest at the rate referred to in the Statement of Claim from 1 May 2013 to today. Order that the cross claim be dismissed. Order that the defendants and cross claimants pay the costs of the plaintiff and order that the exhibits may be returned after 28 days." 13Thus at the time this application is made there is an existing final costs order in the proceedings in the Bank's favour against what are described as "the cross-claimants". 14But who are those cross claimants? The Bank sought to have Justice Link make clear what the Bank says is quite evident from paragraph 5 of his Honour's judgment: that Mr Jamal Charara should be entered into Justice Link as a fourth cross-claimant as he apparently had not been previously due to some oversight. In that paragraph his Honour described the cross claimants in the following way: "[5] A cross-claim was also filed. Ceyser Pty Ltd was the first cross-claimant, ACES Sogutlu Holdings Pty Ltd, the second cross-claimant, Ercan Sogutlu the third cross-clamant and Jamal Charara, the fourth cross-claimant." 15No doubt the Bank wishes to take advantage of Young J's orders to make a claim for and recover the costs of the proceedings against Mr Jamal Charara. Although I am told that Mr Jamal Charara and the other cross-claimants have appealed from Young J's decision, I will deal with this matter on the basis of the Court record as it now stands. 16The starting point must of course be the pleadings, which were before his Honour in the trial. The parties agreed before me on this application that the cross-claim relied upon at the trial before Young J was Annexure C3 to the affidavit Mr Charara of 25 November 2013. It is the 2nd (further) Amended (first) Cross Statement of Claim (and is simply referred to throughout the balance of these reasons as "the Cross-Claim") 17It is clear beyond argument, in my view, from the form and text of the Cross-Claim, that by it Mr Jamal Charara was seeking to advance a claim as the fourth cross-claimant in his own name. In an affidavit verifying sworn by him as he concedes on 4 February 2013, on page 17 of the document he swears that, "I am the fourth cross-claimant and a director of the first and second cross-claimants and I am authorised to commence and carry on with this cross statement of claim". 18Also, throughout the Cross-Claim, there are references to "The cross-claimants" as a body. Sometimes they are referred to by name. But at paragraph 49, it is clear enough that all the cross-claimants seek relief by way of damages of the order of $350,000, plus various amounts in rent, plus the recovery of certain pecuniary losses of the same order, and relief from the obligations of a mortgage over a property in Botany. 19Paragraph 49 of the Cross-Claim says, "the claimants seek" [the various forms of relief sought in that paragraph]. This paragraph seems to me to be clearly a claim on behalf of all of the named cross-claimants. And on the front page of the document, to confirm the matter further, the Cross-Claim declares that it is filed for, "Jamal Charara, fourth cross-claimant". Young J had every reason to proceed on the basis that Mr Jamal Charara was the fourth cross-claimant, to dismiss the cross-claim with him as fourth cross claimant, and then to make an order for costs against him as the unsuccessful fourth cross claimant. In my view that is exactly what happened in this case. 20There is no basis in my view for amending the Justice Link now to remove Mr Charara as fourth cross-claimant. The arguments that he has put up against this conclusion are unsuccessful. I will deal with them shortly. 21If his position as fourth cross-claimant in the proceedings and the entry in Justice Link is to be challenged the appropriate place for that to occur is not through this review mechanism but on any appeal against Young J's judgment. 22Mr Charara advances five arguments against this conclusion, all of which fail. I will briefly deal with those five arguments. 23First Mr Charara points the Court to the decision of State Bank of New South Wales Ltd v Currabubula Holdings Pty Ltd [2001] NSWCA 47 at [112] and submits that companies can only act by natural persons and that his position on the Cross-Claim is wholly accounted for as the representative of the other corporate cross-claimants. That argument can be dismissed on the face of the Cross-Claim, in which he has sworn that he is "the fourth cross-claimant" and in which it is clear that relief is sought on behalf of all cross-claimants including Mr Charara. 24In reality Mr Charara seems to have been seeking to present a case before Young J, which had it been successful, may have advantaged him by allowing him to recover damages as a fourth cross-claimant. But now he has been unsuccessful he appears to want to avoid the consequences of that failure. He will not be permitted to do so. 25Mr Charara's second argument is that there is no finding in paragraph 5 of Young J's judgment that he is a fourth cross claimant in the proceedings. In my view that is not correct. In form paragraph 5 of his Honour's judgment is a finding and one that was in complete conformity with the pleading. 26Mr Charara's third argument is that if one looks at the transcript before Young J it is not clear from the way that he announced his appearance that he was doing anything more than appearing as a representative of the other corporate defendants, and not appearing in its own right as a fourth cross claimant. It does not matter how the appearances were announced. The content of the Cross-Claim is quite sufficient for Young J to act the way he did. 27The fourth argument Mr Charara puts up is that there was never any application under the UCPR to join him as a fourth cross-claimant before the trial and that he was named as a fourth cross-claimant in error and that there was a typographical error in the Cross-Claim. But in my view the reference to Mr Charara in the Cross-Claim does not look even remotely like a typographical error. If it were a typographical error, it is one that to which, Mr Charara not only swore but was then prepared to conduct a 3-day case before Young J without correcting it. It seems to me that, if there was a failure to make an order to formally join him as fourth cross-claimant, it is now too late for him to depart from the consequences of his continuous representations to the Court of his status during the three-day trial before Young J. 28Finally, Mr Charara argues that the defence to the Cross-Claim only refers to three cross-claimants. That seems to be right. The Bank says that was an error on its part. And that seems to be consistent with what Young J did - his Honour just seems not to have taken any notice of that minor error in the defence. This argument has no merit. 29Or is For these reasons I dismiss this application with costs.