[1944] HCA 5
John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1
[2010] HCA 19
News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410
[1996] FCA 870
Ross v Lane Cove Council (2014) 86 NSWLR 34
[2014] NSWCA 50
State of Victoria v Sutton (1998) 195 CLR 291
Source
Original judgment source is linked above.
Catchwords
[1944] HCA 5
John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1[2010] HCA 19
News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410[1996] FCA 870
Ross v Lane Cove Council (2014) 86 NSWLR 34[2014] NSWCA 50
State of Victoria v Sutton (1998) 195 CLR 291[1998] HCA 56
Watson v Foxman (1995) 49 NSWLR 315
Texts Cited: Nil
Category: Procedural rulings
Parties: George Shukri HananiaRaymond Hanania
Judgment (2 paragraphs)
[1]
Judgment
This is the fifth day of hearing of this case which started its litigious life as an application for possession of certain property in Church Street, Granville, being occupied and utilised by the defendants as a used car sale yard. The alleged cause of action giving rise to the claim for possession of the land is breach of "covenant" to pay rent to the plaintiffs. I have put that expression in inverted commas because the lease, if there was one, was substantially oral or at least established by conduct in terms of the payment and acceptance of rent on a monthly basis.
The main protagonists in the litigation are all members of the Hanania family. The matrix of their dispute in relation to the land arises out of initially a partnership formed between or among them to conduct the used car business. The partnership arrangement developed to a point where the first defendant was formed and became a corporate vehicle for carrying on the business.
On the evidence I have heard so far, and I have an entirely open mind about its significance, the personnel of the partnership changed over the years. I should say over the decades. The evidence in the case indicates that at least the seed of the present dispute was planted as long ago as 1988, and during the time since, variously, George Shukri Hanania, the patriarch, Raymond Hanania, one of the four sons, Issa Hanania, another of the four sons, and Elias Hanania, yet another of the four sons, have been principals in the partnership. The dispute concerns the land, as I have said, and by way of cross-claim, Issa Hanania asserts that he has a proprietary interest in the land, which he seeks to enforce by way of a declaration of a constructive trust, at least principally.
It should be said that the plaintiffs are the registered proprietors and have been the registered proprietors since the acquisition of the land.
Perhaps because these arrangements were, to start with anyway, family arrangements, there has been a complete lack of legal documentation of very significant aspects of the changes in the legal relationship of the persons I have referred to over the decades. That, of course, will make the Court's task difficult. I have heard evidence from all of the plaintiffs and other persons, including Nida Hanania, one of the four sisters, who was involved in the business for many years in an administrative capacity. As I have said, I have an entirely open mind, but, obviously, individual perception of events has altered over the decades and may have been influenced by the nature of the dispute and perceptions of self interest in the way described by McLelland CJ in Eq, in the well-known case of Watson v Foxman (1995) 49 NSWLR 315 at 319. However, I acknowledge as something which I need to bear in mind, the time has not yet arrived for me to assess these matters for the purpose of making a final decision.
The matter probably would not have concluded this week. The case was listed for five days. The original estimate had been reduced from seven after discussions between counsel who have conducted the case with commendable efficiency. However, it became apparent that the case would not be concluded within the five days earlier in the week. A contributing factor to that circumstance was a consideration that given the pressures of business in the Common Law Division, the matter was allocated to me even though I had another part heard matter yesterday. The parties used the time to engage in alternative dispute resolution procedures which, alas, did not bear fruit.
But there was a very significant development yesterday afternoon because Mr Elias Hanania, who I have already referred to, attended court just before the conclusion of my part heard case at about 1 o'clock yesterday. After I had adjourned, Mr Hanania told my associate that he wished to mention the matter at 2 o'clock. That information was passed on to counsel. At 2 o'clock Mr Hanania, who is as yet self represented but has engaged, he believes, a solicitor from the law firm of Marsdens to represent him, explained that he believed that he too had an interest in the land at Church Street, Granville.
Previously, the evidence in this case had been that although Mr Elias Hanania had been a partner at one time, he would not be called by either party on the basis that the evidence I have heard this week is suggestive of the circumstance that his interest in the partnership was bought out in a series of transactions involving Mr Raymond Hanania, who wished to re-involve himself in the business but not as an active participant in conducting it. Mr Elias Hanania explained yesterday that he had a different take on those transactions and that he wished to present evidence which would demonstrate that he did, in fact, have an interest in the case.
When this came out yesterday, Mr Wood of counsel, who appears for the defendants, drew my attention to the unanimous decision of the High Court of Australia in John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 ("John Alexander's Clubs"). Part of that judgment deals with a very important principal of adjectival law (from [131] and following). In that case a non-party to the dispute asserted an interest in the land under an unregistered Torrens Title mortgage. (At [131]), the justices said the following:
"Walker Corporation [the alleged holder of the unregistered mortgagee] submitted that where a court is invited to make, or proposes to make, orders directly affecting the rights or liabilities of a non-party, the non-party is a necessary party and ought to be joined. That submission is correct. … The majority of the Court of Appeal ... [would have] held to the contrary."
Their Honours referred to the decision of the Full Court of the Federal Court of Australia in News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410; [1996] FCA 870 at 524-525. Their Honours also observed that the delay of the non-party asserting the proprietary interest is no reason to refuse to make the non-party a party, I interpolate under r 6.23 of the Uniform Civil Procedure Rules 2005 (NSW). This is because a non-party directly affected by orders of the Court is entitled as of right to have those orders set aside: Cameron v Cole (1944) 68 CLR 571; [1944] HCA 5 at 589. The origin of this rule, of course, are found in the fundamental rules of natural justice which underpin the administration of both civil and criminal justice in this State.
The matter was also discussed by Leeming JA in Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 at [51]-[63]. After discussing John Alexander's Clubs (at [57]) his Honour emphasised the statement of the justices (at [153]) "as depending on "matters of right affecting non-parties which rest on general law principles of natural justice"". His Honour also referred to the judgment of McHugh J in State of Victoria v Sutton (1998) 195 CLR 291; [1998] HCA 56 at [77]. McHugh J said:
"The rules of natural justice require that, before a court makes an order that may affect the rights or interests of a person, that person should be given an opportunity to contest the making of that order. Because that is so, it is the invariable practice of the courts to require such a person to be joined as a party if there is an arguable possibility that he or she may be affected by the making of the order (my emphasis)."
While it may be said that Mr Elias Hanania makes a claim, with all due respect, the material before me probably does not establish that there is an arguable possibility that he may be affected by the making of the order sought. However, at the same time it is clear from the judgment in John Alexander's Clubs that the making of a constructive trust at the suit of Mr Issa Hanania is a proprietary order which if made would affect any proprietary interest that Mr Elias Hanania has in the property.
As I have said, r 6.24 requires the Court to join as a party any person the Court considers is necessary to be joined as a party for the determination of all matters in dispute in the proceedings. Having said that, r 6.23 provides that proceedings are not to be defeated merely because of the misjoinder or non-joinder of any person as a party. Nevertheless, it seems to me that the rule I have referred to about joinder of parties is, as I have said, an important rule of adjectival law which, as Leeming JA pointed out in Ross v Lane Cove Council, is not diluted or reduced in significance by the provisions of ss 56 to 59 of the Civil Procedure Act 2005 (NSW) calling for efficiency in the administration of civil justice.
It seems to me that the importance of the rule suggests that I should not, given that Mr Elias Hanania is unrepresented, take a strict view of what the demonstration of an arguable possibility requires and that he should be given the opportunity of bringing forward evidence with the benefit of legal advice that may make good his claim to an interest in the land. Indeed, recognising the significance of the rule, Mr Wood has already brought forward an amended cross-claim which names Mr Elias Hanania as a fifth cross defendant and that will be served on him soon. Reluctant as modern judges are to adjourn proceedings, I feel, for the reasons I have given, that I have no real option but to do so.
I should say that the three plaintiffs and Ms Nida Hanania have travelled to Australia for the purpose of the hearing from the Hashemite Kingdom of Jordan to where they will return soon and it is most unfortunate that the case has not been able to conclude during their trip here for that purpose. However, as I have said, it became apparent that the matter would not conclude, in any event, in the allocated five days and I was in no position to continue the case next week as I have been allocated a civil hearing in regional New South Wales. Obviously, the involvement of Mr Elias Hanania will add to some further delay. That is unfortunate, but unavoidable. I record that Mr George Hanania, the patriarch, is of advanced years and it is unfortunate that the case could not conclude, at least so far as evidence was concerned, during his sojourn on this occasion. It is probably implicit in what I have said that the family do have significant connections with Australia and extended family continues to reside here and they have property interests here.
In any event, I have already indicated to Mr Duc that if suitable arrangements can be made and it is necessary for Mr George Hanania to give further evidence, I would be favourably disposed to an application that that evidence be given by audio visual link. Until Mr Elias Hanania has the opportunity to obtain sensible legal advice, it is not possible to make any directions for the future conduct of the case and for that reason, as I have discussed with the parties, I propose to adjourn the matter for a directions hearing before me at 9.15am on Friday, 20 September 2019.
I should say, for abundant caution, I reserve all questions of costs arising out of the need to adjourn the proceedings.
[2]
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Decision last updated: 22 June 2022