//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2026] NSWSC 691
Supreme Court of NSW
2026-06-15
McGrath J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Gallipoli Health Services Ltd v Ahmed Afifi [2026] NSWSC 691
Hearing dates: 15 June 2026
Date of orders: 15 June 2026
Decision date: 15 June 2026
Jurisdiction: Equity
Before: McGrath J
Decision: Trial of the proceedings vacated
Catchwords: CIVIL PROCEDURE — vacation of four day trial — where the proposed cross-claim appears to arise out of the same factual substratum as the central claim — where the second defendant suffers from a life threatening medical condition that may be exacerbated by conducting the trial without legal representation — where the second defendant’s solicitor indicated he would withdraw if the hearing was not vacated — where indemnity costs order will ameliorate to an extent the plaintiff’s costs thrown away by reason of the vacation — HELD — trial vacated
Legislation Cited: Civil Procedure Act 2005 (NSW)
Competition and Consumer Act 2010 (Cth)
Cases Cited: Cappello v HomeBuilding Pty Ltd [2023] NSWCA 109
The Owners Strata Plan 99170 v MN Builders Pty Ltd [2025] NSWSC 1190
Valuestream Investment Management Ltd as Trustee for the Tip Tofs Trust v Drenside Pty Ltd as Trustee for the Nosivad Investment Trust [2022] NSWSC 1099
Category: Procedural rulings
Parties: Gallipoli Health Services Ltd (Plaintiff)
The Estate of Ihsan Saleh (First Defendant)
Ahmed Afifi (Second Defendant)
Representation: Counsel:
A Zheng (Plaintiff)
A Khoury (Second Defendant)
Solicitors:
Hall & Wilcox (Plaintiff)
Vaikom Law (Second Defendant)
File Number(s): 2024/00269063
Publication restriction: Nil
Today I am about to start a four-day trial in these proceedings in which the plaintiff, Gallipoli Health Services Ltd, has brought a claim against the first defendant, the estate of the late Ihan Saleh (Estate), and the second defendant, Ahmed Afifi. Ms Saleh died on 1 July 2025. Mr Afifi is the eldest son of the late Ms Saleh. I will refer to Ms Saleh, the Estate and Mr Afifi collectively as the defendants.
The proceedings concern a claim by Gallipoli against the Estate under a Resident and Accommodation Agreement (Residential Agreement) under which Ms Saleh permanently resided in aged care at a home located in Auburn, New South Wales, owned by Gallipoli. Gallipoli claims that Ms Saleh breached the Residential Agreement in multiple ways which caused it to suffer loss and damage and that Mr Afifi guaranteed her obligations and liabilities under it.
Gallipoli commenced the proceedings by filing the summons on 22 July 2024, at which time Ms Saleh was alive. Following the passing of Ms Saleh, Gallipoli obtained leave of the court to substitute the Estate for Ms Saleh as the first defendant on 23 February 2026.
Gallipoli has indicated that it no longer wishes to proceed against the Estate and intends to file a notice of discontinuance of its claim against the Estate (T36). Gallipoli has also indicated that it now wishes to only proceed with its claim against Mr Afifi.
The issue that I am required to resolve today is the application by Mr Afifi by notice of motion filed 11 June 2026 to vacate the trial. The application is opposed by Gallipoli as having been made unreasonably late and for which no proper explanation has been provided.
It has taken nearly two years for the proceedings to come to trial. The procedural history is as follows:
On 22 July 2024, Gallipoli commenced the proceedings by filing the summons and its supporting evidence.
On 27 August 2024, 10 September 2024 and 9 October 2024, directions hearings were held before Acting Registrar Onisforou at which Gallipoli appeared through counsel and Mr Afifi appeared in person. At each of those directions hearings, the proceedings were stood over to a further date.
On 23 October 2024, a directions hearing was held before Acting Registrar Onisforou at which Gallipoli appeared through counsel and there was no appearance by or on behalf of Ms Saleh and Mr Afifi. The proceedings were stood over to 6 November 2024.
On 6 November 2024, Registrar Walton made orders requiring Ms Saleh and Mr Afifi to serve their affidavits by 20 November 2024, Gallipoli to serve its affidavits in reply by 26 November 2024 and standing over the proceedings for directions on 27 November 2024.
On 27 November 2024, Registrar Walton made orders for the filing and service of a statement of claim by Gallipoli by 18 December 2024, the filing and service of a defence by Ms Saleh and Mr Afifi by 24 January 2025 and standing over the proceedings for directions on 10 February 2025.
On 23 January 2025, Gallipoli filed the statement of claim.
On 4 February 2025, Gallipoli filed the amended summons.
On 19 February 2025, Mr Afifi filed his defence.
On 24 March 2025, Ms Saleh filed her defence.
In May 2025, Gallipoli filed and served its further evidence-in-chief.
On 22 October 2025, Mr Afifi provided his evidence-in-chief, comprising a single affidavit made by him.
On 5 November 2025, a directions hearing was held before Registrar Walton where the Registrar listed the proceedings for hearing on 15–18 June 2026 before me with an estimate of four days, listed a mediation on 13 February 2026, listed the matter for directions before the Equity Registrar on 24 February 2026 and made the usual order for hearing. Mr Nyunt of Longton Blackwell appeared at the directions hearing for the defendants.
On 6 November 2025, Gallipoli provided its evidence in reply.
On 19 December 2025, I made orders vacating the usual order for hearing and requiring the court book and the supplementary bundle to be provided to my chambers a week in advance of the trial. Those orders were communicated by email to the parties on that day.
On 2 February 2026, Longton Blackwell filed a notice of intention of ceasing to act for the defendants.
In or around March 2026, Mr Afifi retained Vaikom Rajeev of Vaikom Law to act for him. On 6 March 2026, Mr Rajeev filed a notice of change of solicitor replacing Longton Blackwell.
On 3 March 2026, Mr Rajeev sent an email to Longton Blackwell in which he sought the transfer of the complete file of the matter from Longton Blackwell and a transfer of the amount held in trust for Mr Afifi by Longton Blackwell.
On 4 March 2026, Longton Blackwell responded by email to Mr Rajeev asserting that it held a solicitor’s lien over the file and indicating that the issue had been referred to the Law Society of New South Wales. They also observed that they had not yet received a signed authority from Mr Afifi to release the file and to transfer the trust funds.
On 10 March 2026, Longton Blackwell sent an email to Mr Rajeev stating that they required a tripartite deed as security for their costs and, subject to the deed, they would release the files and the trust funds to Mr Rajeev’s account. They also attached a draft deed.
Mr Rajeev then sought to reconstruct the file from documents obtained from Mr Afifi and third parties. There is no evidence of any further attempt made by Mr Rajeev to obtain the complete file from Longton Blackwell.
On 6 March 2026, Mr Rajeev sent an email to Hall & Wilcox (acting on behalf of Gallipoli) stating that he had been retained and communicating a without prejudice offer, being the previous settlement offer which Longton Blackwell had communicated to Gallipoli.
On 25 March 2026, a settlement offer was communicated by Hall & Wilcox to Mr Rajeev. Subsequent attempts on 7, 8, 20, 21 and 28 April 2026 by solicitors from Hall & Wilcox to obtain any response from Mr Rajeev were unsuccessful.
On 14 April 2026, Mr Rajeev informed Mr Afifi that the settlement proposal had been rejected and Mr Afifi instructed Mr Rajeev to “please prepare for the next steps and ensure you have obtained all relevant information regarding the matter from my previous lawyers”.
In light of this contemporaneous document, I do not accept the evidence from Mr Afifi that throughout 2026, he has been waiting for Gallipoli to respond to a settlement offer that he had made and that he expected that the hearing today would be a directions hearing. I do not accept Mr Afifi is correct in this evidence, particularly in light of the fact that an application has been made by him to vacate the trial.
Having failed to obtain any response to the emails sent and telephone inquiries made in April 2026 to Mr Rajeev, on 4 May 2026, Hall & Wilcox sent an email to Mr Afifi asking him whether Mr Rajeev was still acting for him.
On 11 May 2026, Mr Afifi sent an email to Hall & Wilcox stating that Mr Rajeev was still his lawyer, that he had his instructions and asking that they follow-up with Mr Rajeev directly.
Further unsuccessful attempts to communicate with Mr Rajeev were made by solicitors from Hall & Wilcox on 12 May 2026, 13 May 2026 and 1 June 2026, including requesting that Mr Rajeev provide Mr Afifi’s written submissions, chronology, list of authorities and objections for the trial.
It was not until the afternoon of 11 June 2026 that Mr Rajeev telephoned a solicitor from Hall & Wilcox requesting Gallipoli’s position on the offer contained in the email of 6 March 2026 from Mr Rajeev.
No explanation was provided by Mr Rajeev as to why all of the communications in April, May and June 2026 from Hall & Wilcox had been left unanswered by him.
The form of the proposed cross-claim has been provided to me, although the proposed amended defence has not been.
In short, Mr Afifi says that he wishes to amend his defence and bring a cross-claim against Gallipoli to the effect that it engaged in misleading and deceptive conduct in contravention of s 18 of the Australian Consumer Law (contained in Sch 2 of the Competition and Consumer Act 2010 (Cth)) in making representations to him in advance of the Residential Agreement being executed and that Gallipoli acted in breach of the Residential Agreement. Mr Afifi says that he requires time to provide the evidence on which he will rely in support of the proposed amended defence and proposed cross-claim.
Counsel appearing for Mr Afifi at the hearing of the application to vacate the trial indicated to me that he had no instructions to appear as counsel at the trial if the application to vacate the trial was not granted (T5).
Mr Afifi also informed me that if I did not grant the application to vacate the trial then he would not provide continuing instructions to his solicitor, Mr Rajeev, to appear at the trial (T32–33).
Mr Rajeev has not filed a notice of intention of ceasing to act or sought my leave for him to cease to act for Mr Afifi.
Mr Afifi is 50 years of age. He is a trained accountant.
Mr Afifi provided medical evidence in the form of a discharge summary dated 17 November 2025 from Dr Javed Sheriff of Sydney Adventist Hospital which detailed the coronary artery bypass surgery Mr Afifi had undergone on 10 November 2025, as a result of the diagnosis that he suffered from severe coronary artery disease, and his stay in hospital until 17 November 2025 recovering from that procedure.
Mr Afifi gave evidence that dealing with his coronary artery disease was exacerbated by the death of his mother, Ms Saleh, on 1 July 2025.
Mr Afifi also gave evidence that he has been medically advised to avoid stressful situations to assist in his recovery and as a result of that advice he has ceased all work in his occupation as an accountant, although he owns an accountancy practice which is operated by a practice manager and employed accountants.
Mr Afifi agreed in cross-examination that his medical condition had not prevented him from providing instructions to legal representatives and that he had been assisted by legal representatives at all stages of the proceedings.
66 Adjournment of proceedings
(1) Subject to rules of court, the court may at any time and from time to time, by order, adjourn to a specified day any proceedings before it or any aspect of any such proceedings.
…
[19] Section 66(1) of the Civil Procedure Act 2005 (NSW) provides that the court may adjourn proceedings. While this power is cast in broad terms, its exercise is governed by s 58 of the Act, which requires that, when deciding whether to grant an adjournment, “the court must seek to act in accordance with the dictates of justice,” in respect of which the court must have regard to ss 56 and 57 of the Civil Procedure Act. The exercise of s 66 is subject to the principles of case management set out by the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27: Hamod v New South Wales [2011] NSWCA 375 at [139] ff, (Beazley JA, Giles and Whealy JJA agreeing); Menzies v Paccar Financial Pty Ltd (No 4) [2014] NSWCA 210; (2014) 101 ACSR 25 at [48]–[64].
[20] In Thornberry v The Queen (1995) 69 ALJR 777, the High Court held per curiam (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ) that the refusal of an adjournment which resulted in a party being unable to adequately present their case was a miscarriage of the Court’s discretion. This decision has been followed in civil matters: Singh v Deputy Commissioner of Taxation [2011] FCA 889; Kerr v American Express Australia Ltd [2009] FCA 1219; Lennox v Amcor Ltd trading as Amcor Cartonboard (No 2) [2009] FCA 962; Cohen v McWilliam (1995) 38 NSWLR 478 (Court of Appeal).
[21] It is not only the interests of the party to the instant proceedings which ought to be considered; an adjournment necessitates a further appointment of a hearing date which will inevitably delay other parties from obtaining a hearing: Australia and New Zealand Banking Group Ltd v Mio Amico Pty Ltd [2013] NSWSC 716 at [58] per Davies J. Thus, the notion that adjournments can simply be met by an appropriate costs order is no longer an acceptable approach: ANZ v Mio Amico at [59], citing Aon at [99]-[101].
[18] The principles applicable to the exercise of my discretion whether to vacate the hearing date are well established. In determining the defendant’s motion, I am required to give effect to the overriding purpose of the Civil Procedure Act 2005 (NSW) (CPA) which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: CPA, s 56(1). I also need to manage the proceedings having regard to the matters listed in s 57(1) of the CPA and take account of s 58 of the CPA, which requires the Court to seek to act in accordance with the dictates of justice having regard to the matters listed in s 58(2)(b) of the CPA and the provisions of ss 56 and 57 of the CPA.
[19] The dictates of justice are paramount as Beazley JA (as her Excellency then was), observed in Hamod v State of New South Wales [2011] NSWCA 375 (Hamod), at [141]. Her Honour noted that what constitutes a ‘just resolution’ is to be understood in light of the purposes and objectives stated in the statutory provisions. The minimisation of delay and expense are seen as essential to a just resolution of proceedings. However, those terms are relative and the parties should be given an appropriate opportunity to plead and argue their case. Nonetheless, there are limits to the extent that a party will be accommodated in the conduct of the litigation: Hamod at [141].
[20] In the context of an adjournment based on medical grounds, it has also been observed that, generally speaking, if a person is genuinely ill or unable to take part in proceedings, the Court should vacate or adjourn the matter until the appropriate time. However, there are situations where the Court will take another course. One is where a party is so ill that it is unlikely that even if the case is adjourned, he or she will be in any better position on the next occasion. Another is where the relevant party does not attend either with or without a medical certificate in circumstances where there have previously been delays due to their alleged illness and where the court had made it clear that if there is to be an application for an adjournment it must be made by a motion supported by appropriate evidence: Forster v Harvey [2006] NSWSC 1112 at [7]-[8], (Young CJ in Eq (as his Honour then was)), cited in von Reisner v Chepurin [2012] NSWCA 418 at [4], (Ward JA (as her Honour then was)).
[21] In an application to adjourn or vacate a trial on medical grounds, there must also be medical evidence of sufficient specificity to enable the Court to be satisfied that the party making the application is, in fact, unable to attend Court: Uy v Ng [2021] NSWSC 429 at [20].
[22] Thus, the determination of the question is whether the Court should vacate the hearing as sought by the defendants must be assessed in light of the evidence, the potential prejudice to the plaintiff, the lengthy delays to date and the potential impact on other litigants in this Court. Weighing up those matters, and while finely balanced, the conclusion I have come to is that the hearing should be vacated.
Applying the principles from Owners Strata Plan 99170 and Valuestream, I have determined that I will vacate the trial for the following reasons:
The existence of the proposed cross-claim appears to arise out of substantially the same factual matrix as the existing proceedings. Mr Afifi says that he was misled into entering into the Residential Agreement as guarantor. He also says that Gallipoli breached the Residential Agreement. Those issues directly concern matters which will arise in determining the claim of Gallipoli against Mr Afifi. I consider it would be highly inefficient for the court to deal with the claim made by Gallipoli separate of all of the factual and legal matters which will arise on the proposed cross-claim at some future time. It would also result in the incurring of the duplication of costs. I do not accept the position that it is preferable for the court to deal with Gallipoli’s claim, make findings in respect of it and then have the cross-claim dealt with at some future time at which issue estoppels and Anshun estoppels may or may not be raised.
I am concerned about Mr Afifi’s medical condition. I cannot take lightly the life-threatening condition from which Mr Afifi suffers and which I have no doubt would be exacerbated by dealing with the proceedings in which the care of his mother in the last years of her life are centrally concerned. It does not appear that he is in a state where he is prepared to engage in a trial, particularly if he does not receive legal assistance. I am troubled by the notion that Mr Rajeev would cease to act for him in circumstances where Mr Rajeev has not given a notice of intention of ceasing to act nor sought my leave.
Only to a very limited extent, I do recognise that Gallipoli provided a late affidavit, but I do not think that this has hampered the preparation of Mr Afifi for the trial because he appears not to have undertaken any preparations for it (either by himself or through Mr Rajeev).
The proceedings can be directed with expedition to ensure that issues concerning the cross-claim and the further evidence are prepared swiftly and then the proceedings can be ready to take a hearing date again. I intend to case manage these proceedings to ensure that occurs.
To an extent, the plaintiff’s costs thrown away by reason of the vacation of the trial can be ameliorated by the making of an indemnity costs order against Mr Afifi which is assessable and payable forthwith.
The position in which Mr Afifi (and particularly Mr Rajeev) have placed the court is highly unsatisfactory. Gallipoli has already indicated that it wishes to pursue a personal costs order against Mr Rajeev for the costs thrown away by reason of the vacation of the trial. As I said during the course of the hearing, if Gallipoli wishes to take such a step, it will need to make the appropriate application so that Mr Rajeev can be heard in relation to it.
I make the following orders:
The trial of the proceedings from 15 to 18 June 2026 is vacated.
The second defendant is to pay the plaintiff’s costs thrown away by reason of the vacation of the trial on an indemnity basis assessable and payable forthwith.
The proceedings are listed before me for directions at 9.30am on Wednesday 24 June 2026.
**********
Gallipoli Health Services Ltd
Ahmed Afifi
[2009] HCA 27
(2009) 239 CLR 175
(1995) 69 ALJR 777
(1995) 38 NSWLR 478
On 13 February 2026, the parties attended the mediation, and it was unsuccessful. Mr Nyunt of Longton Blackwell appeared at the mediation for the defendants.
On 23 February 2026, Registrar Walton granted leave to Gallipoli to substitute the Estate for Ms Saleh and vacated the directions hearing listed for 24 February 2026.
On 29 May 2026, Gallipoli provided further evidence-in-chief in the form of a further affidavit.
I do, however, consider that it is appropriate to make a costs order on an indemnity basis against Mr Afifi in light of the unsatisfactory manner in which the proceedings have been conducted by him leading up to the trial. On any view, the conduct of Mr Afifi by failing to prepare for the trial in the proceedings has been unreasonable: Cappello v HomeBuilding Pty Ltd [2023] NSWCA 109, Mitchelmore JA (with whom Meagher JA and Simpson AJA agreed) at [46]–[48].