Chahwan v Euphoric [2010] NSWSC 445

The lender made an application for dismissal of proceedings brought by the borrower for want of prosecution and failure to comply with the Court’s directions. The proceedings had been on foot for a long time. They were part of litigation whereby the lender had been trying to recover a judgment for a substantial debt from the borrower.

On a past occasion the judge had said to the borrower’s solicitor:

The matters cannot be conducted in this way, Mr Diab. This matter is becoming a mockery of the Court system. You have a personal obligation regarding the conduct of these proceedings.

On a later occasion the judge said to Mr Diab:

The proceedings will be case managed on an expeditious timetable with a view to obtaining the earliest possible hearing date. I expect strict observance of the Court timetable by both sides. I will allow the Plaintiff six weeks to put his evidence on, but that will be it.”

However on the next occasion it emerged in cross examination of Mr Diab that, far from being able to comply with the directions for the service of affidavits, he had not yet even taken statements. The judge concluded:

The impression that I had earlier gained that these proceedings are, indeed, a mockery has been confirmed. The Borrower has commenced these proceedings to stall recovery of a judgment debt by the Lender and is endlessly spinning excuses for his failure to comply with the Court’s directions to get the matter ready for trial. I am satisfied that these proceedings are an abuse of process in their conception and in their prosecution – except that there has been no genuine prosecution by the Borrower. The Borrower’s Statement of Claim is dismissed.

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