Samawi v Faraone

HIS HONOUR: The plaintiff has requested brief reasons in relation to the only outstanding matters that arise after constructive discussions between the solicitors following further default in the timetable. The result of those discussions is that there has been an agreed further extension of time for the plaintiff to file and serve both lay and expert evidence, but one which, by reason of the defendants having substantially less time to respond than the plaintiff has enjoyed, will still preserve the mediation in June and, if that is not successful in resolving the parties’ disputes, the hearing before me on 21 July 2026.

The outstanding issues are a “guillotine” order concerning the service of affidavit evidence, and the special costs order sought by the defendants.

The failure by the plaintiff to file and serve any evidence to date, which is now some eight months after judgment, amply warrants a limitation on the plaintiff’s entitlement to serve evidence, by way of a signal that orders for the service of evidence are not moveable feasts, but instead compliance with them is important because it directly affects the fair conduct of litigation, as well as the public resource that is court time. Last December, the plaintiff sought and was given until 18 February; on 9 March that time was extended until 1 and 14 April for lay and expert evidence; an affidavit was prepared on 9 April saying that an extension until 20 April was required, and the orders which will be made, ultimately by consent, today will extend the time until 30 April. The “guillotine” order that is proposed is that if, once again, the plaintiff fails to comply with the amended time for service of lay and expert evidence being 30 April 2026, she shall not be entitled to rely on any such evidence without leave of the Court. That order is made in circumstances where as recently as 9 April the solicitor had proposed an extension to today, yet that now turns out not to be feasible.

The point of the order is that the plaintiff should be under no misapprehension that, if she fails to comply on this most recent occasion with the extended timetable, her case will fail because she will have no evidence, unless she can persuade me through the grant of leave that she should be given a yet further indulgence. The order is appropriate.

The second matter concerns costs. There have been directions hearings on 9 March as well as today, both brought about because the plaintiff has failed to comply with the timetable. Each directions hearing has been supported by an affidavit giving a partial explanation of what has occurred and anticipating that compliance will be achieved. On 9 March, the date suggested was 1 April for lay evidence and 14 April for expert evidence; on 9 April, the estimate was postponed to 20 April 2026, and today it has been postponed to 30 April 2026.

It is common ground that the plaintiff must pay the defendants’ costs thrown away by each of the re-listings brought about by her failure to comply with the timetable. The only point in issue is whether I should at this stage fix those costs – the defendants have proposed the amount of $3,000 – and order that they be paid within 14 days. The $3,000 is in my view less than the likely amount recoverable from the costs order which is conceded should be made. It is not merely, of course, the attendance at directions hearings, but the need for the defendants’ solicitors to review the affidavits that have been supplied in advance of each directions hearing, consult their files, and obtain instructions, as well as attending before me on two separate occasions. I am confident that, if the costs order which is conceded should be made went to assessment, the defendants would obtain more than the $3,000 that is put forward.

Therefore the real question is whether these proceedings should be treated as if they were in the Commercial List with costs being recoverable immediately, rather than at the end of the proceedings.

It is unusual in proceedings in the Real Property List for such an order to be made. On the other hand, these proceedings themselves are unusual. As I understand it, the plaintiff who is the legal owner of land has declined to pay any amount pursuant to her personal obligations under the mortgage or by way of other expenses such as council rates and water rates. The predictable response has been that, very recently, the bank has commenced proceedings in this Court to recover possession of the property.

It is in my view highly unsatisfactory that the trustee and legal owner of land simultaneously fails to comply with a series of timetabling directions, all of which have been brought about so that she can have a further hearing on a point that was not litigated at the two day trial before me last year, and at the same time decline to meet her legal obligations as mortgagor and legal owner of the land, with the predictable consequence of proceedings being commenced by the bank.

One way of bringing home to the plaintiff the significance of complying with court orders is not merely making a costs order, but also making the order that is sought by the defendants and which is regular in the Commercial List, which is to say, that those costs be payable immediately rather than at some stage in the future.

The circumstances are unusual and the order that is sought is unusual, but in my view it is appropriate for it to be made in the present case.

Accordingly, I will make the order proposed by the defendants which is, “The Plaintiff is to pay the Defendants’ costs thrown away by reason of the re-listings on 9 March 2026 and 20 April 2026 fixed in the amount of $3,000 within 14 days.”

To be clear, that order is not in form or substance a mandatory injunction, however, the defendants will be at liberty to execute it no differently from any other judgment in a monetary sum in the event that there is non-compliance within 14 days of today.