Southern Cross Credit Union Ltd v Reavill Farm Pty Ltd (No 2)

HIS HONOUR: By a statement of claim filed on 1 December 2016 Southern Cross Credit Union Ltd (“the plaintiff”) commenced possession proceedings against Reavill Farm Pty Ltd (“the defendant”). A defence was filed by the defendant on 6 January 2017, which did not respond to the plaintiff’s pleaded case.

By a notice of motion brought on 24 October 2017, the plaintiff sought an order that the defence filed by the defendant be struck out and default judgment for the plaintiff for possession of land owned by the defendant at 141 Hazlemount Lane, Tuckurimba NSW 2480, specifically the parcel of land with folio identifier 2/1086613 (formerly identified as the commercial premises at Lot 23 Hazlemount Lane, with folio identifier 23/1021621) (“the property”) (“the application”). The plaintiff also sought leave to issue a Writ for Possession of Land.

The central issue in the proceedings was whether or not the Farm Debt Mediation Act 1994 (NSW) had application.

On 28 June 2018, the Court gave judgment in relation to the application: Southern Cross Credit Union Ltd v Reavill Farm Pty Ltd [2018] NSWSC 999 (“Reavill Farm No 1”).

In Reavill Farm No 1, the Court reached the following conclusions at [145]-[150]:

The Court made the following directions (at [151]):

The plaintiff filed further written submissions on 4 July 2018, together with proposed short minutes of order, in response to those directions. As to the application that the defence be struck out and a default judgment entered, the plaintiff made the following submissions:

The plaintiff proposed short minutes of order, reflecting the judgment and those submissions, as follows:

Having regard to the conclusions reached by the Court in Reavill Farm No 1 and the further submissions of the plaintiff, which I accept, the Court shall make the orders proposed by the defendant.

As to the question of costs, the plaintiff made the following submission:

The plaintiff sought an order for costs in the following terms:

The Court noted in Reavill Farm No 1 that costs would, having regard to the conclusions reached by the Court, normally favour the plaintiff as following the event. Direction 3 in [151(3)] of Reavill Farm No 1 reflected that preliminary conclusion. Nonetheless, an opportunity was given to the defendant to make further submissions in relation to the question of costs. The defendant did not avail itself of the opportunity to make those submissions. The following is a short recitation of the events following the publication of Reavill Farm No 1.

On 28 June 2018, Ms Belinda Nott, whom appeared on behalf of the defendant (see Reavill Farm No 1 at [21]-[22]), contacted Chambers via email to advise that she was unable to attend court to receive judgment and requested that a copy of the judgment be provided to her “by email” (I interpose to note that Ms Nott’s email address was listed as the “contact email” for the defendant in these proceedings). That was attended to that same day.

On 27 July 2018, Ms Belinda Nott emailed Chambers, together with the solicitors for the plaintiff, an attachment that could not be accessed by the Court or the plaintiff. The attachment was described by Ms Nott, within the body of the email, as “submission” and, it may be inferred, was a submission as to the question of costs.

That same day, shortly after receipt, Ms Nott was contacted by reply-email and notified that the attachment “appear[ed] to be corrupt or otherwise inaccessible”. It was requested that she re-send the submission by email with attachment. Following an absence of reply, the Court attempted on several subsequent occasions to contact Ms Nott, with respect to the provision of submissions in reply as to costs, to no success.

In the result, on 9 October 2018, Ms Nott was directed to file and serve any submission in reply by Tuesday, 16 October 2018 at 4pm and the following warning was also communicated via the same email:

Ms Nott did not reply to that communication, either by way of responding to it or submitting an application for further time.

On the eve of judgment, a communication was received from Ms Nott, for the defendant, seeking a delay of judgment. No mention was made of the above communications. There was no indication that a submission as to costs would be provided, nor additional time sought to do so.

In the circumstances, I consider that the defendant has had ample opportunity to make any further submissions that it wished to make in relation to the question of costs and, notwithstanding numerous opportunities to rectify a failed attempt to (it would appear) provide such submissions and a warning that the Court would act in the absence of the submissions of the defendant if submissions were not filed by 16 October 2018, the defendant failed to file such submissions. The Court shall, therefore, in accordance with intimations given in Reavill Farm No 1 that costs would follow the event, make the order proposed by the plaintiff as to costs.

In the result, the Court makes the following orders: