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Youssef Taouk and Najibi Taouk v Najib Louis (No.1)

Feb 12, 2020

Youssef Taouk and Najibi Taouk v Najib Louis (No.1) [2014] NSWSC 656

REOPENING A CASE FOR NEW EVIDENCE

G&S law Group acted for the First Defendant in these proceedings. This case involved an allegation of Mortgage fraud by Mr. and Mrs. Taouk, both pensioners who claim that they were unaware of and did not sign loan documents that were used to refinance their home with Perpetual Trustees Australia Limited. The Plaintiffs were represented by Counsel and solicitor in the Supreme Court.

After eight days of hearing including a full day for oral submissions that had been supported by written submissions, the Plaintiff sought to re-open their case. The Plaintiff claimed they had new evidence from an accountant, Mr. Ward that was purported to have been involved with producing tax returns that the Mortgage manger, the Second Defendant, relied on when providing the loan. The allegation of the Plaintiff was that Mr. Ward’s ‘fresh evidence’ would establish that these tax returns had nothing to do with him and the Court found that the evidence would be relevant if allowed. However, after considering written submissions on behalf of the Plaintiffs about the interest of justice as set out in s 56 and 58 Civil Procedure Act his Honour Justice Dark held at 35:

“It is clear that if the case was now to be re-opened, considerable additional expense would be incurred by all parties, and the finalisation of the matter will be further delayed. It would also cause some unfairness to the defendants who have conducted the hearing, and likely made forensic decisions, on the basis that the hearing was concerned with the evidence given by the deponents of the affidavits which had been served prior to the hearing.

36. Viewing the circumstances overall, I have come to the conclusion that it is not in the interests of justice for the case to be now re-opened. Whilst the evidence which is sought to be adduced is clearly relevant, I do not think that it is of such importance that the hearing should be re-opened at this late stage, having regard to the considerable additional expense and inconvenience which would be brought about, coupled with the fact that the problem was created by lack of action on the part of the plaintiffs’ solicitor.”

It is clear that the Court has determined that ‘doing justice’ is a weighing up exercise where the competing interests of and any prejudices against each party must be considered. In the case the weight of the evidence claimed to be fresh evidence, did not outweigh the prejudice in terms of costs, delay and forensic disadvantage that the Defendants would have suffered and the new evidence was not allowed nor was the case re-opened. It also loomed large that it was the failure of the Plaintiff’s solicitor to properly prepare the case that caused the delay and for this reason case preparation more than ever is vital in civil litigation.

Link to the full case can be accessed below:-

FULL CASE

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