O'Keefe v Integral Corporate Property Pty Ltd

1. [1]

   HIS HONOUR: The application before the Court is an application by the defendants to vacate the hearing dates of these proceedings. The hearing is listed to commence this coming Monday 27 June 2022 for five days.

2. [2]

   The application to vacate the hearing dates was opposed.

3. [3]

   I have determined to vacate the hearing dates.

4. [4]

   It is appropriate to set out briefly some of the background leading to the adjournment application, the principles relating to adjournment applications and my consideration of those principles leading to the decision that I have made.

Background

1. [5]

   These proceedings were commenced on or about 8 January 2021 by the plaintiffs and relate to claims by the plaintiffs in relation to a property at Glebe that is alleged to be held by the first defendant on trust for the first plaintiff.

2. [6]

   There are related proceedings between the parties (21/54306) in which relief was sought in respect of the operation of caveats on the title to the Glebe property and a property at the Entrance (both held by the first defendant).

3. [7]

   These proceedings, which are essentially the main proceedings between the parties, have had a lengthy procedural history, including initially, applications for freezing and restraining orders and applications for security for costs.

4. [8]

   It appears initially after the application was commenced, consequent upon an application for injunctive relief, the defendants were subjected to restraining orders in dealing with the Glebe property.

5. [9]

   On 12 February 2021 Sackar J ordered expedition of the proceedings.

6. [10]

   I was informed by the counsel who appeared on the application to the proceedings (Ms Cohen behalf of the plaintiff and Mr Allen on behalf of the defendants) that it was the imposing of the injunctive relief that led to the application for expedition.

7. [11]

   On that occasion (12 February 2021) and subsequently, various orders and directions have been made in the matter as it has progressed in the Expedition List, though from time to time there have been applications it seems before a duty judge for specific interlocutory relief.

8. [12]

   By judgment delivered on 27 September 2021, namely O’Keefe v Integral Corporate Property Pty Ltd [2021] NSWSC 1219, Slattery J made orders in respect of an application for security for costs, freezing orders and it appears injunctive relief against certain of the defendants restraining them from dealing with various interests in property.

9. [13]

   On 7 October 2021 Slattery J declined to make an order for referral of the matter to mediation.

10. [14]

    On 15 October 2021 Sackar J listed both matters for hearing with an estimate for three days commencing on 5 April 2022.

11. [15]

    His Honour made an order that evidence in the proceedings be evidence in the related proceedings and also made the usual order for hearing.

12. [16]

    On 25 March 2022, approximately two weeks before the hearing of these proceedings was listed to commence, the matter was listed before Sackar J.

13. [17]

    I was informed by Ms Cohen that she had formed the view at that time that the matter would not be completed within the allotted three days and she considered it appropriate to bring that matter to the attention of the Court.

14. [18]

    Ms Cohen denies that she sought vacation of the hearing date but states that Sackar J vacated the hearing in the context described on the basis that it would not be completed within the time allotted.

15. [19]

    On 28 March 2022, Sackar J set the matter down for hearing for five days to commence, as I have mentioned, next Monday.

16. [20]

    The claims in the proceedings have been amended by the plaintiffs from time to time.

17. [21]

    It is evident from the pleadings that the issues in the proceedings involve a degree of complexity.

18. [22]

    The current state of the pleadings is that there is a third further amended statement of claim which was filed on 27 April 2022, pursuant to leave given by Sackar J on 22 April 2022.

19. [23]

    The allegations in the proceedings include allegations relating to breach of fiduciary duty, alleged damage to the Glebe property, fraudulent misrepresentation, constructive trust and equitable estoppel.

20. [24]

    It is claimed, at least in part, that there was an assignment by the first plaintiff to a Mr Adam Stone of the first plaintiff's interest in the land. There has been a subsequent transfer of the property to the first defendant.

21. [25]

    The defence filed on 26 May 2022 to the current claim raises issues in relation to the effectiveness of the assignment and in respect of indefeasibility of title amongst other matters.

22. [26]

    On 25 May 2022 my associate corresponded with the parties by email indicating that the matter would be listed for pre-trial directions on 31 May 2022.

23. [27]

    On 30 May 2022 the defendants by email provided to my associate and copied to the plaintiffs provided a list of objections to the plaintiffs’ evidence in the proceedings.

24. [28]

    On 31 May 2022 the listing before me for pre-trial directions proceeded and directions were made for final preparation of the matter for hearing, including directions in respect of lists of affidavits, objections to affidavits, the preparation of a court book, the provision of written submissions and lists of authorities.

25. [29]

    Compliance with the directions is currently, at least in part, in default.

26. [30]

    There was some slight delay on the part of the plaintiffs in providing a list of affidavits, which was done on 16 June 2022.

27. [31]

    On Monday 20 June 2022 my associate emailed the legal representatives to the parties drawing attention to the orders made on 31 May 2022 and noting that I had yet to receive a list of affidavits intended to be relied upon by the defendants and the plaintiffs’ objections to affidavits with the defendants’ responses.

28. [32]

    On 21 June 2022 the solicitor for the defendants responded by email to my associate apologising for the delay, and noting that the email, though copied to the other legal representatives, was not sent with the plaintiffs’ consent.

29. [33]

    The email identified the affidavits on which the defendants sought to rely but more particularly alerted the Court to the fact that the defendants’ counsel, Mr Allen, had recently caught COVID 19 and was currently unwell.

30. [34]

    In those circumstances, a request was made by the defendants to extend time until midday Friday (24 June 2022) in order for the defendants to respond to the plaintiffs’ objections to evidence and provide written submissions and authorities.

31. [35]

    The email further indicated that the defendants’ solicitors were in the process of finalising the court books and that it was anticipated that this would be provided by midday on Thursday 23 June 2022.

32. [36]

    Following receipt of the email, my associate, at my request sent an email to the parties’ legal representatives requesting the parties to work cooperatively to ensure that the directions made would be complied with as soon as reasonably practicable, but in any event no later than noon on 23 June 2022.

33. [37]

    A further email was sent to the parties clarifying that the court book should be provided by 12 noon on Thursday 23 June 2022 and the other compliance documents be provided by midday on Friday 24 June 2022.

34. [38]

    On 22 June 2022, shortly after noon, Mr Allen sent an email to my associate copied to the other legal practitioners, noting that on Monday 20 June 2022 he returned a positive rapid antigen test for COVID 19 and was currently in self isolation and would not be released until the earliest on Monday 27 June 2022, the date for the commencement of the hearing.

35. [39]

    The email attached a form of medical clearance certificate and noted that his symptoms had not abated.

36. [40]

    The email alerted the Court to the fact that Mr Allen held a concern that he would not be well enough to properly present his client's case.

37. [41]

    The email also noted that Ms Cohen, counsel for the plaintiffs, had been understanding of Mr Allen's predicament and consented to the email being sent to my associate.

38. [42]

    Prior to 2 PM on 20 June 2022 my associate at my request sent an email to the parties noting that I had considered the terms of Mr Allen's email.

39. [43]

    I enquired as to whether the plaintiffs and/or the defendants were seeking to vacate the hearing dates, and if so, whether the application was consented to, opposed or not opposed. I indicated that if the parties had proposed orders the orders should be provided to me to consider.

40. [44]

    I noted that if there was no agreed position the matter would be listed for mention at 10:30 AM on Thursday 23 June 2022.

41. [45]

    Shortly after 2:30 PM Mr Allen sent an email to my associate requesting that the matter be listed at 10:30 AM indicating that he would seek vacation of the hearing dates.

42. [46]

    The email provided proposed short minutes of order, as follows:

43. [47]

    Just prior to 5 PM on 22 June 2022, Ms Cohen sent an email to my associate copied to the other parties noting that there was no agreement by the plaintiffs to the hearing dates being vacated.

Principles regarding adjournment

1. [48]

   The Court has power to adjourn the hearing of proceedings in appropriate circumstances.

2. [49]

   There is a statutory power pursuant to s 66 Civil Procedure Act 2005 (NSW) (CPA) and the Court has an inherent power to adjourn or vacate proceedings.

3. [50]

   The statutory power to adjourn is to be exercised in accordance with the overriding purpose of the civil procedure legislation and rules to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

4. [51]

   The Court in deciding whether to make any order for the management of the proceedings, including an order considering the granting of an adjournment of proceedings, must seek to act in accordance with the dictates of justice: s 58(1)(a)(ii) CPA.

5. [52]

   For the purposes of determining what the dictates of justice are in a particular case, the Court must have regard to the provisions in ss 56 and 57 CPA, and may have regard to the matters set out in s 58(2)(b) CPA to the extent which the Court considers them relevant.

6. [53]

   The provisions of s 58(2)(b) CPA are as follows:

7. [54]

   There is extensive case law dealing with the principles in respect of an adjournment.

8. [55]

   Recently in Sinclair v Creenaune [2022] NSWSC 230 Hallen J in delivering reasons for judgment in respect of a family provision application in which an adjournment was sought, helpfully referred to a degree of this case law at [84]–[93].

9. [56]

   In particular, Hallen J referred to the decision of the Western Australian Court of Appeal in Rowe v Stoltze (2013) 45 WAR 116; [2013] WASCA 92, in which the Court of Appeal emphasised that the rules of procedural fairness are not fixed or immutable, and noted that procedural fairness is directed to avoiding practical injustice and observed that what is necessary to avoid practical injustice will depend upon the circumstances of any given case: at [51].

The adjournment application

1. [57]

   The listing to deal with the defendants’ application for adjournment proceeded by means of audio visual facility, with Mr Allen appearing by that means and Ms Cohen connecting by telephone.

2. [58]

   Ms Cohen initially indicated that the application to vacate was not consented to as she could not get instructions. Upon further discussion she indicated the application was opposed. Ms Cohen asserted that the matter was not ready in any event, and that she had not received a court book but had received an index to the proposed court book running to 83 pages.

3. [59]

   I asked Mr Allen about this. He indicated that the actual volume of material in the court book was in the order of 300 to 400 pages and that the issue with the index, if any, was that there was over particularisation of information rather than any substantive issue.

4. [60]

   Ms Cohen indicated that if the hearing were vacated her client would be involved in extra costs, including costs associated with conduct money. She said subpoenas had been issued to witnesses and at least one witness had arranged to take the whole week off work in order to attend.

5. [61]

   Mr Allen indicated, it seems to me correctly, that the witnesses could be released from their subpoenas and new subpoenas issued, or, alternatively, the time on the subpoenas (for attendance) could be amended.

6. [62]

   Mr Allen further indicated that the conduct money is not money to allow Mr Stone to take an entire week off work, but for him to attend court only, and, as he understood it, Mr Stone is the only witness of substance that really needs to be subpoenaed.

Consideration of the application

1. [63]

   I have had regard to the overriding purpose of the CPA and rules as they apply to the determination of the real issues in the proceedings (s 56) and the objects of case management (s 57) including the just determination of the proceedings, the efficient disposal of the business of the Court, the efficient use of available judicial and administrative resources, and the timely disposal of the proceedings at a cost affordable by the respective parties.

2. [64]

   Having regard to the considerations of the dictates of justice, as listed in s 58(2)(b) it is evident that:

3. [65]

   In the above context, having regard to the explanation for the adjournment application and the reasons advanced to oppose it, I consider it appropriate to order that the hearing dates be vacated.

4. [66]

   I consider that it would be unfair in the above circumstances to force the defendants to proceed to trial within a few working days in the circumstances of Mr Allen's illness that currently prevail.

5. [67]

   It seems to me that it would be difficult at this late stage for the defendants to engage separate legal representation to sufficiently come to grips with the nature of the case and the issues involved and readily prepare for the hearing which will require a degree of cross-examination.

6. [68]

   In particular, I bear in mind that if Mr Allen is not available for the hearing and alternative counsel had to be engaged, the defendants’ counsel would ordinarily be required to cross examine first in the proceedings, and accordingly potentially be required to be ready to do that as early as Monday morning or Tuesday.

7. [69]

   Further, I am mindful that under the orders proposed on the part of the defendants it is not suggested that there are any further procedural directions that are likely to delay the hearing of the matter, but rather what is proposed is that the hearing dates be vacated and that the matter be listed before the expedition judge on 1 July 2022 in order to obtain a new hearing date.

Costs

1. [70]

   In relation to the costs of the proceedings, costs are in the discretion of the Court: s 98 CPA.

2. [71]

   As with the case law in relation to adjournments, there is case law which bears upon the consideration of the determination of an appropriate costs order in proceedings which are vacated through the illness of counsel, occurring without the fault of any party.

3. [72]

   In Tuggeranong Town Centre Pty Ltd v Brenda Hungerford Pty Ltd (No 3) [2017] ACTSC 301; (2017) 325 FLR 436 Refshauge J delivered judgment in relation to issues of costs, in particular dealing with reserved costs of proceedings occasioned by the illness of senior counsel.

4. [73]

   His Honour helpfully and conveniently gathered the relevant authorities and set out the principles that [322]–[336] as follows:

5. [74]

   The considerations bearing upon the dictates of justice as they apply to the question of adjournment of the proceedings also clearly inform the question of what, if any, costs order ought to be made in relation to the vacation of the hearing dates.

6. [75]

   Ms Cohen sought an order that the defendants pay the plaintiffs’ costs thrown away in the event that the hearing dates were vacated.

7. [76]

   Ms Cohen indicated that she would not be charging any cancellation fee.

8. [77]

   Ms Cohen further indicated that any preparation work done now would be preparation for the next hearing in any event. I accept that and consider that the preparation work done now, or at least a significant part of it, will be not be wasted work in relation to the hearing of the matter when it finally takes place.

9. [78]

   Ms Cohen mentioned issues in relation to costs for conduct money and the issue of subpoenas. However, it seems to me that in light of the matters that Mr Allen has referred to, which I accept, any such costs will be relatively minor.

10. [79]

    Mr Allen when I asked him to address on costs, with frankness accepted that the costs, which are expected to be minimal in the context that I have outlined above, ought to be paid by his clients.

11. [80]

    Apart from the comments of counsel, it is not obvious to me that there will be any significant wasted costs associated with the vacation of the hearing. As I have noted the orders sought in the matter are that the matter be relisted promptly on 1 July 2022 before the expedition judge in order to obtain a new hearing date.

12. [81]

    In the above context I have ordered that the costs of and incidental to the vacation of the hearing dates be paid by the defendants.

13. [82]

    The orders of the Court are as follows:

    1. (1)

       Order the listing of the hearing of these proceedings due to commence Monday 27 June 2022 be vacated.

    2. (2)

       Order the matter be listed before the Expedition Judge on Friday, 1 July 2022 in order to obtain a new hearing date.

    3. (3)

       Grant liberty to the parties, should the need arise, to restore the matter before the Expedition Judge with 24 hours’ notice.

    4. (4)

       Order that the Defendants pay the Plaintiffs’ costs thrown away occasioned by the vacation of the hearing dates.

    5. (5)

       Note the costs order is made in the context in which the Plaintiffs’ counsel has indicated she will not be charging any cancellation fees in respect of the vacated hearing dates.