Demir Leather and Furniture Pty Ltd v Michael (No 2)

HER HONOUR: This is an application for an extension of time to file both lay and expert evidence, which comes forward in circumstances where his Honour Fagan, J on 28 September made orders in the following terms:

The application is supported by an affidavit sworn by the plaintiff’s solicitor, Mr McCrohon on 17 November 2017.

What is sought are orders extending the time for service of lay evidence. The purpose of the extension to 9 and 14 November, reflects the dates when that evidence was in fact served. For expert evidence, an extension to 4 December is sought. The plaintiff’s application in respect of the lay evidence is not opposed, but that in relation to the expert evidence is.

There is no issue between the parties as to the costs order which should be made in respect of this further application for the Court’s indulgence, namely, an order for indemnity costs payable forthwith.

The defendant’s position is that what has been revealed by the affidavit sworn by Mr McCrohon, is not such that the Court would grant an extension for the service of the expert’s report until 4 December. Given what has been revealed about the circumstances in which the lay evidence finally came to be sworn and what is said about further work necessary to be performed by Mr Bell, the plaintiff’s expert accountant, as a result in dealing both with work that has already been performed and his availability to perform further required work, the extension would be granted.

It appears that Mr Bell has returned to work, following an absence, on 21 November and has informed the plaintiff that he can complete his report for 4 December. The defendant’s position is, nevertheless, that there has been no explanation given for the need for that further time.

Despite that submission, given what else has fallen from the defendant, I am satisfied that the order which the plaintiff sought should be made. I cannot see any prejudice to the defendant from now granting that time.

The delay between what was proposed, namely, that the report be served by Friday next 24 November, and 4 December is not significant. It is also unclear what prejudice could flow from the date sought being granted by the Court. In the circumstances, it is quite apparent from the affidavit that not only has there been representative error on the part of Mr McCrohon, as to compliance with the Court’s orders, but also relevant error on the part of Mr Bell, the expert, who, on the material, has not taken the steps necessary to be taken, given the retainer that he accepted, in circumstances where he was made aware of the Court’s orders and the consequences for the plaintiff, of not being able to serve his report within the time the Court had given.

I am satisfied, in all the circumstances, that justice would not permit the consequences of those errors to be visited on the plaintiff.

Nevertheless, as Fagan J found, not only was the plaintiff’s delay up until 28 September completely unjustified, the plaintiff’s failure to exercise the liberty granted to restore the proceedings to the list, in the event that a difficulty was encountered in complying with the further indulgences granted, has not been satisfactorily explained by the plaintiff’s legal representative.

There was, prior to the specified date, neither approach to the Court, nor advice to the defendant. That is not mere discourtesy it is, importantly, a failure to comply with the requirements of s 56 of the Civil Procedure Act 2005 (NSW), which imposes obligations not only on the Court but also on the parties and their legal representatives, to facilitate what is there specified to be the overriding purpose of the legislative scheme, the just, quick and cheap resolution of the real issues in the proceedings.

For those reasons, I make the orders which are sought by the plaintiff. The matter will go back into the list at 9am on 11 December 2017 before the Registrar.

I order that:

The parties are directed to confer as to the amount of costs to reflect the costs order that I have made.

Consent orders can be forward to my Associate and I will make them in chambers, failing which the parties should file submissions on or before 4 December 2017.