Cohen v Sacks [2021] NSWSC 88

Supreme Court New South Wales

Medium Neutral Citation: Cohen v Sacks [2021] NSWSC 88 Hearing dates: 12 February 2021 Date of orders: 16 February 2021 Decision date: 16 February 2021 Jurisdiction: Common Law Before: Schmidt AJ Decision: I order that: 1. The hearing listed to commence on 12 April 2021 and consent orders for case management made in December 2020 are vacated. 2. The matter is listed for hearing for 25 days commencing 28 February 2022. 3. The parties are to confer and file proposed orders for further preparation of the matter for hearing, including service of Mr and Mrs Cohen's statements, within a reasonable timeframe after the directions hearing. 4. The matter is listed for directions before Harrison J on 5 March 2021 at 9.30am. 5. Mr and Mrs Cohen are to bear the defendants' costs thrown away as the result of the vacation of the hearing on an indemnity basis. Catchwords: CIVIL PROCEDURE – Hearings – Adjournment – Application opposed – Courts power under s 66 of the Civil Procedure Act 2005 (NSW) to order an adjournment on plaintiff's application in circumstances of financial difficulty – whether plaintiffs' adjournment application should be granted where defendant's professional competence attacked in medical negligence claim – where unusual combination of circumstances relied on to establish basis for adjournment – where income derived from businesses adversely affected by COVID-19 pandemic and financial position adversely affected by consequences of claimed medical negligence – adjournment granted.

EVIDENCE – Ferrcom inference – whether inference should be drawn where failure to disclose some financial information – where evidence disclosed relevant financial situation – no inference drawn. Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 66 Competition and Consumer Act 2010 (Cth) Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: AON Risk Services Australia Lts v Australian National University 239 CLR 175; [2009] HCA 27 Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Haskins & Sells [1993] 3 VR 863 Bomanite Pty Ltd v Slatex Corp Aust (1991) 32 FCR 379 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Commercial Union Insurance Company of Australia Limited v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Deangove Pty Limited (Receivers and Managers Appointed & Anor v Commonwealth Bank of Australia [2002] FCA 1352 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Richards v Cornford (N0 3) [2010] NSWCA 134 Sali v SPC Ltd [1993] 67 ALJR 841; [1993] HCA 47 Stambolziovski v Nestorovic and Camanaro Prestige Properties Pty Ltd t/as Sydneyhome Real Estate [2015] NSWCA 332 Category: Principal judgment Parties: Mariela Cohen (First Plaintiff) Gregory Cohen (Second Plaintiff) Gavin Sacks (First Defendant) IVF Australia Pty Ltd (Second Defendant) Representation: Counsel: D Williams SC (Plaintiffs) T Sant (Plaintiffs) M Windsor SC (First Defendant) N Oreb (First Defendant) A Horvath (Second Defendant)