Plaintiff v Defendants

2 Shortly prior to the hearing, the plaintiff's lawyers sought and obtained leave to cease to act for the plaintiff in the proceeding. The plaintiff has not obtained alternative legal representation and so currently represents himself.

3 For the reasons that follow, I will summarily dismiss the plaintiff's claim as against the first defendant.

4 On 5 October 2018, the plaintiff, Mr Mohamed, was a passenger on an aircraft piloted by the second defendant. The aircraft crashed and the plaintiff sustained very serious injuries.

5 At the time of the crash, both the plaintiff and the second defendant had been enrolled in flight training courses, including the Diploma of Aviation (Commercial Pilot Licence - Aeroplane) ('CPL Diploma').

6 The plaintiff commenced this proceeding on 30 September 2021 naming Soar Aviation Pty Ltd ('Soar Aviation') as the first defendant, alleging (in broad terms) that it operated the flight school, that it was negligent in allowing the second defendant to fly with the plaintiff as his passenger, and that it was liable to him for damages. At the time of commencement of the proceeding, the statement of claim also named the pilot as second defendant, articulating a claim for damages as a result of his alleged negligence.

7 Soar Aviation had been deregistered on 7 October 2020.[1] Following some procedural missteps which resulted in Soar Aviation's insurance broker being incorrectly named in its place as the first defendant, on 8 May 2023, the plaintiff obtained leave to file a further amended statement of claim ('FASOC'). By the FASOC, relying on s 601AG of the Corporations Act 2001 (Cth) ('Corporations Act'), the plaintiff substituted as first defendant Soar Aviation's insurers, being Certain Underwriters at Lloyds subscribing to policy number A039511.

8 The FASOC also named Soar Aviation Aircraft Holdings Pty Ltd (in liq) ('Soar Aviation Aircraft'), Gobel Aviation Pty Ltd (in liq) ('Gobel') and Box Hill Institute as the third, fourth and fifth defendants, respectively. The plaintiff sued each entity in negligence, in connection with their alleged roles in operating the flight school at which the plaintiff and the second defendant were enrolled when the accident occurred and in delivering the CPL Diploma.

9 In the FASOC, the plaintiff alleges, amongst other things, that:

(a) the fifth defendant engaged Soar Aviation and the third and fourth defendants to operate the flight school at Moorabbin airport and to deliver the CPL Diploma;

(b) Soar Aviation (together with the third and fourth defendants) held a Part 141 Certificate under the Civil Aviation Safety Regulations 1998 (Cth) enabling them to train the CPL Diploma students to fly certain aircraft as defined by that Part;

(c) the CPL Diploma was delivered under the supervision of the employees of Soar Aviation (and the third and fourth defendants) and it was vicariously liable for the acts or omissions of those employees;

(d) by reason of its involvement in delivering the CPL Diploma, Soar Aviation owed a duty to the passengers (including the plaintiff) on aircrafts flown by student pilots, like the second defendant, to 'take reasonable care to see that the passenger did not suffer from a foreseeable risk of injury';[2]

(e) Soar Aviation breached its duty of care to the plaintiff, in respect of which he has suffered loss and damage.

10 The plaintiff relies upon two insurance policies to justify his claim against the first defendant as the insurer in respect of a liability owed by Soar Aviation, the insured. One such policy is styled 'Hangarkeepers Legal Liability Insurance Policy numbered A039511' ('Hangarkeepers Policy') and the other as 'Aircraft Hull and Liability Insurance Policy numbered H3-36920'.[3]

11 The first defendant makes this application for the reasons that:

(a) Soar Aviation has never been the registered owner of the aircraft that crashed; and

(b) Soar Aviation was not, at any relevant time, involved in the flight school (and by logical extension, in delivering the CPL Diploma).

The first defendant submits that there is no basis for the plaintiff to contend that Soar Aviation ever owed the plaintiff a duty of care or that Soar Aviation has breached such duty to the plaintiff causing him loss and damage. The first defendant contends that the insurer cannot be liable under s 601AG of the Corporations Act as there is no liability of Soar Aviation that will be covered by any of its policies of insurance.

Summary judgment pursuant to ss 62 and 63 of the CPA

12 The first defendant seeks summary judgment under s 62 of the CPA on the ground that the plaintiff's claim has no real prospect of success. Subject to s 64, the Court may give judgment summarily under s 63 of the CPA if it is so satisfied.

13 The test to be applied under s 63 of the CPA is whether the plaintiff's claim has a 'real' as opposed to a 'fanciful' chance of success.[4] The authorities urge caution, and that regard be given to the overarching purpose under the CPA, when exercising the power to terminate a proceeding summarily given, in consequence, the plaintiff against whom summary judgment is given will be deprived of the chance to pursue their claim.[5] Courts should only exercise the power where it is clear there is no real question to be tried.

14 Even if there is no real prospect of success of the plaintiff's case disclosed in the pleadings, under s 64 of the CPA, the Court may nevertheless allow a matter to proceed to trial if:

(a) it is not in the interests of justice to summarily dispose of the plaintiff's claim; or

(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.

Whether the Court should, in accordance with s 64 of the CPA, allow the proceeding to go to a full hearing on the merits must be determined according to the circumstances of each case.

15 An application for summary judgement must be made in accordance with Part 3 of Order 22 of the Rules. The moving party bears the onus of persuading the Court that the opposing party's claim has no reasonable prospect of success. However, once a prima facie case has been established, there is '"something akin" to a shifting of the evidential burden to the defendant'[6] to 'respond by pointing to specific factual or evidentiary disputes that make a trial necessary...'.[7] An application for summary judgment is likely to succeed if the moving party can demonstrate that the opposing party's success in the proceeding relies upon a question of fact that 'can be truly described as "fanciful, trifling, implausible, improbable, tenuous or one that is contradicted by all the available documents or other materials".'[8]

16 The first defendant relies upon Notices to Admit that it issued to, amongst others, the plaintiff on 4 December 2023[9] ('First Notice to Admit') and 3 June 2024[10] (Second Notice to Admit'). Each notice enclosed documents, and the First Notice to Admit alleged the existence of two facts, namely, that:

(a) at all times relevant to the plaintiff's claim, the third defendant owned the aircraft that crashed; and

(b) at all times relevant to the plaintiff's claim, the fourth defendant operated the flight school.

17 The plaintiff made no response to either notice, and so, the first defendant contends, by operation of r 35.03(2) of the Rules in relation to the alleged facts, and of r 35.05(2) in relation to the documents, the plaintiff is taken to have admitted the facts and the authenticity of the documents.

18 Relying on the admissions of fact arising by the operation of r 35.03(2) of the Rules, the first defendant submits that it is entitled to judgment on the admissions pursuant to r 35.04. The Court's power to give judgment on the basis of the admissions is discretionary and must be exercised with great caution.[11] The Court must be satisfied that the admission in question is 'clear and unambiguous', making it 'impossible for the party making [the admission] to succeed'.[12]

19 The admissions of fact, and as to the authenticity of the documents, are also relevant in assessing whether the plaintiff's claim enjoys any real prospect of success. Therefore, the first defendant also relies on the admissions for the purposes of its summary judgment application.

Soar Aviation did not operate the flight school

20 The plaintiff submits that Soar Aviation owed him a duty of care to avoid injury by reason of its involvement in operating the flight school and delivering the CPL Diploma. To establish Soar Aviation's involvement in operating the flight school, the plaintiff relies upon:

(a) the Hangarkeepers Policy because it is expressed by its terms to provide insurance coverage in favour of 'Soar Aviation Pty Ltd T/As Soar Aviation' and 'Gobel Aviation Pty Ltd T/As Soar Advanced Flight Training'[13] for the period from 21 November 2017 to 21 November 2018;

(b) a Part 141 certification under the Civil Aviation Safety Regulations 1998 (Cth) which he submits enabled 'Soar' to train CPL Diploma students;[14] and

(c) historical business name records which show that, historically, each of Soar Aviation and Gobel operated under the business name 'Soar Aviation'.[15]

21 The first defendant submits that Soar Aviation was not involved in the operation of the flight school or the delivery of the CPL Diploma at the time of the accident for the simple reason that it had been removed from the corporate group of companies whose operations were connected to the flight school.[16] The first defendant has put into evidence the transaction documents by which the restructure was effected and completed several months prior to the accident.[17] The transaction documents comprise as follows.

(a) The Vendor Legal Due Diligence Report[18] dated 19 April 2018, which includes a restructure step plan showing Soar Aviation as part of the Soar Aviation Group as at the date of the report with Khokhani Pty Ltd (as trustee for the Khokhani Family Trust) ('Khokhani') holding a 100% interest in each of the companies in the group. The restructuring step plan outlines the intended transfer of all of the shares in each company in the Soar Aviation Group, except for those in Soar Aviation, from Khokhani to Soar Aviation Holdings Pty Ltd ('Soar Aviation Holdings'). The step plan also contemplates the transfer of assets owned by Soar Aviation, which included certain aircraft, to another company in the restructured group and for the discharge of various PPSR registrations.[19]

(b) Resolutions passed on 6 June 2018 by each of Khokhani and Soar Aviation Holdings for Soar Aviation Holdings to acquire all issued shares in certain of the Soar Aviation Group companies, except for Soar Aviation, from Khokhani.[20]

(c) An Asset Transfer Agreement executed on 8 June 2018 by which Soar Aviation sold its assets to two other Soar Aviation Group companies.[21]

(d) A Deed of Rectification to Share Sale Agreement & Amended Share Sale Agreement between Khokhani and Soar Aviation Holdings, in respect of the sale of shares in certain of the Soar Aviation Group companies but excluding Soar Aviation, dated 8 June 2018.[22]

(e) An Amendment Deed (Share Purchase Agreement) between Khokhani and Double Sunrise Holdings Pty Limited, in respect of the sale of shares in certain of the Soar Aviation Group companies but excluding Soar Aviation, dated 2 July 2018.[23]

(f) Soar Aviation Group's special purpose financial report for FY 2018, dated 29 January 2019, which records under the heading 'Events occurring after the reporting period':

On 2 July 2018 Double Sunrise Holdings Pty Ltd acquired 100% of the issued shares of Soar Aviation Holdings Pty Ltd. This transaction resulted in Double Sunrise Holdings Pty Ltd controlling the following entities: - Soar Aviation Aircraft Holdings Pty Limited - Gobel Aviation Pty Limited - Soar Aviation (FIAD) Pty Limited - Soar Aviation Melbourne Pty Limited - Soar Aviation Sydney Pty Limited.[24]

Each of the above transaction documents was attached to the Second Notice to Admit, which was not responded to by the plaintiff, such that their authenticity is taken to have been admitted by him.

22 While the plaintiff correctly identifies that Soar Aviation is named as an insured in respect of the Hangarkeepers policy, that policy was written prior to the restructure, and so does not reflect Soar Aviation's removal from the Soar Aviation Group. Irrespective, the first defendant submits that the Hangarkeepers policy does not provide coverage for an accident like that which occurred to the plaintiff.

23 The first defendant submits that it was Gobel, the fourth defendant, who operated the flight school at the time of the accident. It submits that the Part 141 Certificate relied upon by the plaintiff as demonstrating that Soar Aviation was approved to provide flight training is described incorrectly by him in his affidavit and submissions. The first defendant has put into evidence the Part 141 certificate issued on and from 20 March 2017 to 31 August 2018, a second certificate issued on and from 7 December 2017 to 31 August 2018,[25] and a third certificate that was valid at the time of the accident, being that issued on and from 8 August 2018 to 31 October 2020.[26] Each certificate has been issued in the name of Gobel, the fourth defendant, and records that as holder of the certificate Gobel is 'approved to provide flight training and assessment...'.[27] The second and third certificates, issued on 7 December 2017 and 8 August 2018 respectively, describe Gobel as 'trading as Soar Advanced Flight Training'.[28] Relevantly, the third certificate was attached to the First Notice to Admit, which was not responded to by the plaintiff, such that its authenticity is taken to have been admitted by him.

24 A fourth certificate, issued on and from 15 May 2020 to 30 April 2021, is exhibited by the plaintiff to his affidavit.[29] It similarly names Gobel as the holder, refers to it trading as ' Soar Advanced Flight Training' and describes Gobel as being entitled to provide flight training and assessment. None of the certificates in evidence makes reference to the entity Soar Aviation at all. I am satisfied that no Part 141 certificate has been issued to Soar Aviation at any relevant time entitling it to provide flight training and assessment.

25 During the course of the hearing, the plaintiff also submitted that each of Gobel and Soar Aviation used the business name 'Soar Aviation'. The documents relied upon by the plaintiff are historical ABN searches, and they suggest that during the period from 7 October 2019 to 8 November 2019, each entity traded under that same business name.[30] Based on these records, the plaintiff submitted that even though Soar Aviation was supposedly dormant after the Soar Aviation Group restructure, it must have been 'in some sense operational at a later date'.[31] Leaving to one side whether these records are accurate and reliable, they show only that a common trading name may have been used for a period of one month over one year after the accident. Even if they show that Soar Aviation had some operations at that time, the documents do not evidence any involvement by Soar Aviation in the flight school, or in delivering the CPL Diploma at any relevant time.

(a) the evidence of the restructure of the Soar Aviation Group as occurred in mid-2018, prior to the plaintiff's accident;

(b) the absence of any evidence to support the plaintiff's contentions that, despite that restructure, Soar Aviation remained involved in operating the flight school at the time of the plaintiff's accident;

(c) the plaintiff's admission, by operation of r 35.03(2) of the Rules, of the fact alleged in the First Notice to Admit to the effect that the fourth defendant operated the flight school; and

(d) the plaintiff's admission, by operation of r 35.05(2) of the Rules, as to the authenticity of each of the documents enclosed within the First and Second Notices to Admit, including those transaction documents related to the restructure,

I am satisfied that Soar Aviation did not operate the flight school, nor was it involved in delivering the CPL Diploma at the time of the plaintiff's accident.

27 In the FASOC, the plaintiff pleaded that the third defendant owned the aircraft involved in the crash. This is admitted by the first defendant. The plaintiff also conceded this during the course of the hearing - saying he does not 'dispute the...ownership of [the] aircraft'[32] by the third defendant.

28 Although there is no dispute between the parties as to the ownership, I note the following for completeness.

(a) In evidence, there is a letter from the Civil Aviation Safety Authority which shows the third defendant as the registered owner of the aircraft since 28 September 2017.[33] That letter was attached to the First Notice to Admit, which was not responded to by the plaintiff, such that its authenticity is taken to have been admitted by him.

(b) The aircraft is identified in one of the transaction documents as an asset owned by companies in the restructured Soar Aviation Group.[34] This document was attached to the Second Notice to Admit, which was not responded to by the plaintiff, such that its authenticity is taken to have been admitted by him.

(c) The First Notice to Admit alleged a fact to the effect that the third defendant owned the aircraft involved in the accident. Again, this was taken to have been admitted by the plaintiff when he failed to respond to the First Notice to Admit.

Soar Aviation did not owe any duty of care to the plaintiff

29 For the reasons above, I am satisfied that Soar Aviation had no role in the operation of the flight school and the delivery of the CPL Diploma, nor did it own the aircraft, at the time of the plaintiff's accident. Put simply, the facts alleged by the plaintiff in the FASOC against the first defendant are 'contradicted by all the available documents or other materials.'[35] They are also contradicted by his own admissions. It cannot, therefore, be alleged that Soar Aviation owed the plaintiff a duty of care in respect of the operation of the flight school or the aircraft, and the plaintiff's claim against the first defendant (as insurer) enjoys no real prospect of success. The Court is satisfied that summary judgment should be given in favour of the first defendant under s 63 of the CPA.

30 There are no circumstances of which the Court is aware, and none were raised by either party to the application, which would justify allowing the matter to proceed to trial in accordance with s 64 of the CPA, despite this conclusion.

31 I will, accordingly, summarily dismiss the plaintiff's claim against the first defendant. Given my findings on the question of summary judgment, I do not need to separately determine whether the plaintiff's claim against the first defendant ought be dismissed pursuant to r 35.04.

32 The plaintiff's material filed in opposition to the application makes apparent his confusion about some of the challenging issues that have already arisen in this proceeding in which he seeks compensation for the life changing injuries he has sustained. This includes grappling with the deregistration and insolvency of companies, and the complexities of determining the responsiveness of insurance policies. Given the plaintiff is self-represented, the Court notes for his benefit, as was submitted by the first defendant,[36] that this ruling while disposing of the claim against the first defendant, does not preclude his claims against the remaining defendants, including against the two defendants in liquidation. As the parties are aware, leave was given by Hetyey AsJ, for the reasons set out in Re Soar Aviation Aircraft Holdings Pty Ltd (in liq) and Gobel Aviation Pty Ltd (in liq),[37] for the plaintiff to proceed against those two defendants under s 500(2) of the Corporations Act. Judgment was later entered, in this proceeding, against the third and fourth defendants in default of appearance for damages to be assessed. Those defendants remain 'involved' in the proceeding by reason that the plaintiff is entitled to have his damages against them assessed at trial.

33 I will summarily dismiss the plaintiff's claims against the first defendant.

34 The first defendant seeks its costs of the proceeding, including the costs of its application. It has not yet made any detailed submissions as to costs. Ordinarily, costs would follow the event, however, given the underlying facts which justify summary judgment have existed since before the plaintiff's accident, and from well before the proceeding was commenced as against the first defendant, I seek an explanation from the first defendant as to why it did not make its application far earlier in the proceeding such as when, in June 2022, it first pointed out to the plaintiff's then lawyers that he had sued the wrong defendant, as opposed to a couple of months prior to the (since vacated) trial in late 2024. I will make further directions to allow the parties to the application to address the issue of costs in light of this ruling.

CERTAIN UNDERWRITERS AT LLOYDS SUBSCRIBING TO POLICY NUMBER A039511

SOAR AVIATION AIRCRAFT HOLDINGS PTY LTD (IN LIQ) (ACN 613 275 853)

GOBEL AVIATION PTY LTD (TRADING AS SOAR ADVANCED FLIGHT TRAINING) (IN LIQ) (ACN 006 160 658)

[1] Affidavit of Ian Ross Adrian sworn 7 November 2024, Exhibit IRA-2, 5 ('Fourth Adrian Affidavit').

[2] Further Amended Statement of Claim filed on 8 May 2023, [14].

[3] Affidavit of Tarek Mohamed sworn on 30 October 2024, Exhibit TM-1 ('Mohamed Affidavit'). The two policies are exhibited to the affidavit at 63 and 25, respectively.

[4] Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158; (2013) 42 VR 27 ('Lysaght').

[5] Lysaght 40 [35] (Warren CJ and Nettle JA), 42 [40]-[42] (Neave JA).

[6] Bendigo and Adelaide Bank Limited v Grahame [2020] VSC 86, [31].

[7] Attala v YWAM Surrey Hills Ltd & Ors [2024] VSC 268, [17], quoting Pathmanathan v Healthscope Operations Pty Ltd [2020] FCA 65 at [8].

[8] Attala v YWAM Surrey Hills Ltd & Ors [2024] VSC 268, [17], quoting Pathmanathan v Healthscope Operations Pty Ltd [2020] FCA 65 at [8].

[9] Affidavit of Ian Ross Adrian sworn 27 August 2024, Exhibit IRA-1, 15 ('Third Adrian Affidavit').

[10] Third Adrian Affidavit, Exhibit IRA-1, 299.

[11] Stuart v Mordialloc Sporting Club Inc [2023] VSC 110,[18]-[19]. See also ACT International Investment Pty Ltd v Li [2019] VSC 759, [22]-[26] ('ACT International Investment').

[12] ACT International Investment [24].

[13] Mohamed Affidavit, Exhibit TM-1, 67.

[14] Plaintiff's Written Submissions filed on 30 October 2024, [9].

[15] Transcript of Proceedings, Tarek Mohamed v Certain Underwriters at Lloyds Subscribing to Policy Number A039511 (Supreme Court of Victoria, S ECI 2021 03580, Goulden AsJ, 22 November 2024) T31-T34 ('Transcript'). The plaintiff cited the historical details searches for the ABN associated with each entity located at pages 161 (Gobel) and 165 (Soar Aviation) of Exhibit TM-1 to the Mohamed Affidavit.

[16] The Soar Aviation Group collectively referred to a group of companies consisting of Soar Aviation Pty Ltd, Gobel Aviation Pty Ltd, Soar Aviation Melbourne Pty Ltd, Soar Aviation (FIDA) Pty Ltd, Soar Aviation Aircraft Holdings Pty Ltd and Soar Aviation Sydney Pty Ltd.

[17] Third Adrian Affidavit, Exhibit IRA-1.

[18] Third Adrian Affidavit, Exhibit IRA-1, 303.

[19] Third Adrian Affidavit, Exhibit IRA-1, 310.

[20] Third Adrian Affidavit, Exhibit IRA-1, 415-416.

[21] Third Adrian Affidavit, Exhibit IRA-1, 417-433.

[22] Third Adrian Affidavit, Exhibit IRA-1, 437-470.

[23] Third Adrian Affidavit, Exhibit IRA-1, 471-728.

[24] Third Adrian Affidavit, Exhibit IRA-1, 749.

[25] Third Adrian Affidavit, Exhibit IRA-1, 6-9.

[26] Third Adrian Affidavit, Exhibit IRA-1, 21.

[27] Third Adrian Affidavit, Exhibit IRA-1, 6, 9, 21.

[28] Third Adrian Affidavit, Exhibit IRA-1, 9, 21.

[29] Mohamed Affidavit, Exhibit TM-1, 126.

[30] Mohamed Affidavit, Exhibit TM-1, 161, 165.

[33] Third Adrian Affidavit, Exhibit IRA-1, 19-20.

[34] Third Adrian Affidavit, Exhibit IRA-1, 566.

[35] Attala v YWAM Surrey Hills Ltd & Ors [2024] VSC 268, [17], quoting Pathmanathan v Healthscope Operations Pty Ltd [2020] FCA 65 at [8].

[36] First Defendant's Written Submissions filed on 27 August 2024, [26].

[37] [2022] VSC 812, [43]-[76].