KM & A Chadwick Pty Ltd v Yeung, E.T.M. & Ors [1995] FCA 353

LIMITED DISTRIBUTION CATCHWORDS PRACTICE and PROCEDURE - application to set aside summary judgment and file defence - application for adjournment of notice of motion - history of repeated non-compliance with court's orders - late discovery of conflict of interest between respondents - offer of solicitor to pay costs on indemnity basis - whether adjournment should be granted to allow new solicitors to be instructed. KM & A CHADWICK PTY LIMITED v ERIC TSUN MAN YEUNG and ORS No NG 3187 of 1994 Tamberlin J Sydney 12 May 1995

LIMITED DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 3187 of 1994 GENERAL DIVISION ) BETWEEN: KM & A CHADWICK PTY LIMITED Applicant AND: ERIC TSUN MAN YEUNG First Respondent JOSEPH TAK-WONG WONG Second Respondent ANNA ANN YEUNG Third Respondent GARRY LESLIE STAFFORD Fourth Respondent WAYNE ALBERT STAFFORD Fifth Respondent ERIC JOHN WALSH Sixth Respondent CORAM: TAMBERLIN J PLACE: SYDNEY DATED: 12 MAY 1995 MINUTE OF ORDERS THE COURT ORDERS THAT: 1. The further hearing of these proceedings be adjourned until 25 May 1995 at 9.15am. 2. Patricia Bouzanis pay to the applicant the costs of and relating to today's hearing on an indemnity basis. 3. Any further affidavits to be filed by any of the respondents to be filed and served by 19 May 1995, in relation to this application to set aside Sackville J's judgment. NOTE: Settlement and entry of orders is dealt with in accordance with Order 36 of the Federal Court Rules.

LIMITED DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 3187 of 1994 GENERAL DIVISION ) BETWEEN: KM & A CHADWICK PTY LIMITED Applicant AND: ERIC TSUN MAN YEUNG First Respondent JOSEPH TAK-WONG WONG Second Respondent ANNA ANN YEUNG Third Respondent GARRY LESLIE STAFFORD Fourth Respondent WAYNE ALBERT STAFFORD Fifth Respondent ERIC JOHN WALSH Sixth Respondent CORAM: TAMBERLIN J PLACE: SYDNEY DATED: 12 MAY 1995 REASONS FOR JUDGMENT The claim by the applicant company against the respondents in the principal proceedings was based on section 592(1) of the Corporations Law. As a result of proceedings before Sackville J on 21 February 1995 and 1 March 1995, orders were made striking out the defence and entering judgment for the applicant company in the sum of $108,923.11 including interest, together with an order that the respondents pay the costs of the applicant. On 6 March 1995 the respondents filed a notice of motion, which is presently before me, seeking to set aside the orders of Sackville J and leave for the respondents to file a defence in the same terms as contained in the defence struck out by Sackville J. The basis of the orders made by Sackville J was the failure of the respondents to comply with the Court's orders relating to discovery, together with their failure to provide at any stage an acceptable explanation for the breaches of the Court's orders or to provide a sufficient basis for concluding that the respondents were able or willing to co-operate with the Court or with the applicant in ensuring that the matter was ready for trial within an acceptable period. The history of the matter demonstrated that there had been repeated delays in the conduct of the proceedings up to that time. Moreover, the respondents failed to appear on the hearing of the applicant's motion to strike out the defence and enter judgment. On 17 March 1995 the notice of motion to set aside the orders of Sackville J came before me. On that occasion I gave directions that all affidavits to be relied on by the applicants on the motion were to be filed by 31 March 1995. The notice of motion was set down for hearing before me today. By 1 April 1995 the only affidavit filed was that of Patricia Bouzanis of 24 February 1995. This affidavit purported to give an explanation as to why there was no appearance on 21 February 1995 and stated that Ms Bouzanis did not know the reason why in the past the Court's timetable had not been complied with, but she undertook to comply with all future directions made by the Court. When the matter came before me this morning, Mr Aldridge for the respondents filed in court a number of affidavits dated today. One of the affidavits was by Patricia Bouzanis who was responsible for the carriage of the proceedings. She stated that yesterday after discussion with the fifth respondent she formed the view that her clients' interests may be in conflict as between the clients themselves. Furthermore a letter annexed to her affidavit of 12 May 1995 from the second respondent indicated the definite possibility of a conflict of interest between herself and the interests of the first, second and third respondents. That letter expressed grave concern at Ms Bouzanis acting for the Stafford interests as well as the other respondents. Mr Aldridge submitted that in order to present properly the case for the respondents on this notice of motion it was necessary that independent new solicitors should be instructed as a result of the conflict of interest which had arisen. He therefore sought an adjournment to enable this to be done and evidence to be compiled and filed in relation to the question of whether the judgment ought to be set aside.