Supreme Court New South Wales Medium Neutral Citation: Cameron v Franks [2023] NSWSC 437 Hearing dates: 17 April 2023 Date of orders: 28 April 2023 Decision date: 28 April 2023 Jurisdiction: Equity Before: Robb J Decision: See [44] Catchwords: CIVIL PROCEDURE — hearings — adjournment — where defendant made informal application for adjournment on day of hearing LAND LAW — co-ownership — statutory trust for sale — where plaintiff seeks appointment of trustees for sale pursuant to s 66G of the Conveyancing Act 1919 (NSW) Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 Conveyancing Act 1919 (NSW), s 66G Uniform Civil Procedure Rules 2005 (NSW), r 7.36(1) Cases Cited: Franks v Franks [2011] NSWSC 1261 Franks v Franks [2013] NSWCA 60 Category: Procedural rulings Parties: Brad Alan Cameron (Plaintiff) Gregory Michael Franks (Defendant) Representation: Counsel: M Cobb-Clark (Plaintiff) Solicitors: Attwood Marshall (Plaintiff) File Number(s): 2022/00010944 Publication restriction: Nil JUDGMENT 1. The plaintiff, Brad Alan Cameron and the defendant, Gregory Michael Franks, are brothers. Their father and mother were Alan and Dawn Franks. In these reasons, I will with no disrespect intended refer to the members of the family by their first names. 2. Dawn died on 13 January 2010. After Dawn died, Alan and Brad sought family provision orders from this Court in respect of Dawn's estate. At first instance, Macready AsJ determined that Alan should receive a portable life interest in certain property at Port Macquarie that was the principal asset in Dawn's estate, and that the remainder in equity was to be held equally by Brad and Gregory: Franks v Franks [2011] NSWSC 1261. Both brothers appealed. The Court of Appeal varied the first instance orders, by leaving the portable life interest in favour of Alan in place, but deciding that the remainder should be held by Gregory as to two thirds and Brad as to one third: Franks v Franks [2013] NSWCA 60. 3. Upon the death of Alan on 8 April 2020, Brad and Gregory became entitled to equitable interests in possession in the Port Macquarie property in the proportions one third to two thirds. Brad commenced these proceedings by summons filed on 13 January 2022, in which he sought orders that two independent persons be appointed pursuant to s 66G of the Conveyancing Act 1919 (NSW) as trustees for the sale of the Port Macquarie property. Brad filed an amended summons on 29 April 2022, to correct an error in the original summons so that the trustees for sale would be ordered to divide the balance of the proceeds of sale, after payment of the usual costs and expenses, as to one third to Brad and as to two thirds to Gregory. 4. Gregory filed a cross summons on 28 July 2022 in which he sought the following relief: 1. A declaration that the agreement made in July 2017 (Agreement), whereby the plaintiff/cross-defendant agreed to sell to the defendant/cross-claimant his one-third share in the reversionary interest in the [Port Macquarie property] (Land) is valid and enforceable. 2. A declaration that, by reason of the Agreement, the plaintiff/cross-defendant: a. has no equitable or legal interest in the Land; and b. further, or in the alternative, is not a co-owner of the Land for the purposes of section 66G of the Conveyancing Act 1919 or otherwise. 3. Further or in the alternative to prayer 2, a declaration that the Agreement ought to be specifically performed. 4. Orders and directions for the implementation of prayer 3. 5. In the alternative to prayers 2 to 4, a declaration that the plaintiff/cross-defendant holds a share in the Land equal to a. $30,000; or b. in the alternative, 30% of one-third (being a 10% share in the Land), and the defendant/cross-claimant holds the remaining share. 6. Further, or in the alternative to prayer 1, and in the alternative to prayers 2 to 5, a declaration that the plaintiff/cross-defendant has breached or repudiated the Agreement. 7. Damages. 8. An order that the plaintiff/cross-defendant pay the costs of the proceedings. 9. The parties have liberty to apply on seven days' notice. 10. Such further or other orders as the Court sees fit. 1. On 29 April 2022, Darke J made an order granting leave to Gregory to file a notice of motion seeking referral for pro bono legal assistance. In accordance with his Honour's leave, Gregory filed a notice of motion on 13 May 2022. On 16 May 2022, his Honour made an order pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 7.36(1) that Gregory be referred to the Registrar for referral to a barrister or solicitor on the Pro-Bono Panel for legal assistance in respect of these proceedings. 2. A solicitor and a barrister agreed to act for Gregory in these proceedings. Gregory's cross summons was filed by his pro bono solicitor as were the affidavits that he subsequently affirmed in support of his case. 3. The parties have served evidence in support of their respective claims. Gregory's first and second affidavits were affirmed on 28 July 2022 and 13 October 2022. I infer that Gregory had the advice of his pro bono legal representatives when he prepared these affidavits. They appear to have been professionally prepared. 4. On 21 October 2022, Peden J made an order setting the matter down for hearing before me on 17 April 2022, with an estimate of two days. Gregory was represented by his pro bono barrister at the time her Honour set the matter down for hearing. 5. On the application of Gregory's pro bono solicitor made urgently, on 31 March 2023 I made the following orders in these proceedings: The Court: … 2. Grants leave to [name of pro bono solicitor and her firm] to cease to act for the defendant pursuant to UCPR [r] 7.29(2)(a). 3. Directs the solicitor for the defendant to notify the defendant of these orders within 3 days, and to inform the defendant that the Court has not vacated the hearing fixed for 17 and 18 April 2023, with the intent that the hearing will commence on 17 April 2023. 4. Grants leave to the solicitor for the plaintiff to inspect the Court file in these proceedings by arrangement with the Registry, to make copies of any documents on the file with the intent that this will facilitate the plaintiff's solicitor being able to compile a court book for the assistance of the Court for the purpose of the hearing fixed to commence on 17 April 2023. 1. The orders were made on the basis of an affidavit sworn by a solicitor in the employ of Gregory's pro bono solicitor on 24 March 2023. The solicitor deposed that the pro bono solicitor had filed a notice of appointment of solicitor on 14 June 2022, having been requested by counsel to act for Gregory, after receiving instructions from Gregory to do so. 2. The solicitor gave evidence of attempts made by the pro bono solicitor to get instructions from Gregory that were necessary to enable the solicitor and counsel to prepare Gregory's case for hearing. 3. The solicitor explained that, notwithstanding the attempts of his pro bono legal representatives to obtain urgent instructions, and requests that he reply by 21 March 2023, no instructions were received by either means with which the lawyers had communicated with Gregory. Gregory did not reply, notwithstanding a warning given to Gregory that if his lawyers did not receive his instructions, they would take steps to terminate their legal representation of him. 4. The solicitor deposed that counsel sought and was given leave from the Duty Registrar to return the pro bono brief. Counsel notified Gregory by email on 1 March 2023 that she had returned the pro bono brief and no longer acted for him. 5. On 22 March 2023, the pro bono solicitor notified Gregory by email that she had taken steps to apply for leave to withdraw, including by seeking to file a notice of ceasing to act. 6. On 23 March 2023, the Duty Registrar referred the application for leave to withdraw to me, as the judge who had been allotted to preside at the hearing. 7. The solicitor deposed that on 24 March 2023, he and the pro bono solicitor called Gregory on his mobile phone, but Gregory did not answer the call. The solicitor said that he left a voicemail for Gregory identifying himself and referring to the numerous correspondence that Gregory had been sent and requesting that Gregory provide a response as soon as possible. 8. The correspondence sent to Gregory by his pro bono solicitor included the following letter dated 24 March 2023 that was sent by express post and registered post. The letter stated: As you are aware from the correspondence you have been included in with the Supreme Court of NSW Registry, [firm name] are seeking leave to file a notice of ceasing to act. We advise that this matter has been listed for a Directions Hearing at 9:15 AM on Friday 31 March 2023. We intend to appear at this Directions Hearing, and seek leave to file a notice of ceasing to act. Should you wish to make an appearance at this Directions Hearing, we would advise contacting the Supreme Court Registry to facilitate a virtual appearance. Accompanying this letter is a copy of a signed affidavit. We advise that we will seek leave at the Directions Hearing to file this affidavit; which details the numerous attempts made by [firm name] to obtain instructions in relation to this matter prior to seeking leave to file a notice of ceasing to act. As you are aware your matter is currently listed for hearing on 17 April 2023. You should take immediate steps to prepare for this hearing. As we are seeking leave to cease to act; you should consider taking steps to obtain alternative legal representation; or prepare to appear as an unrepresented litigant. A copy of this letter, as well as the signed affidavit, has also been sent to your email address [email address stated]. 1. I gave short reasons for making the orders that I made on 31 March 2023. As those reasons have not been published, I will now set them out: 1 I am satisfied that the evidence establishes that Mr Vuu of counsel has appeared pro bono this morning to make the application on behalf of the present solicitors for the defendant, and that both the present solicitor for the defendant and former counsel, who has been permitted to return her brief, have agreed previously under the pro bono scheme that is available through the Court to act for the defendant in these proceedings on a pro bono basis. 2 The evidence establishes that the solicitor and counsel have sought instructions from the defendant as they thought necessary for assistance in enabling them to properly appear at the hearing that is fixed for 17 and 18 April 2023. 3 The legal representatives of parties have duties, not only to their client but also to the Court, and it follows that parties have an obligation to the Court and to their legal representatives to provide proper instructions. 4 It is a very important facility for the Court that there are lawyers whose public spirit extends to being prepared to take on onerous obligations of representing parties in litigation for no fee. When lawyers do that they are entitled to be instructed properly by their clients no less than if the clients are paying the fee that would otherwise be payable. 5 I am satisfied that the defendant has entirely declined to provide the instructions to which his pro bono legal representatives were entitled. The Court cannot expect those representatives to continue to appear for the defendant because they would be in the invidious position of having to make up the defendant's case as they went along. That would be an intolerable professional position for those legal representatives to find themselves in. That would be the case whether they were entitled to payment or not; but the fact is that it is entirely unacceptable to the court that lawyers who are prepared to act pro bono are put in the position that the defendant's legal representatives found themselves in in this case. There is really no alternative in those circumstances but for the Court to give the defendant's solicitor leave to withdraw her services in these circumstances and I so do. 1. Gregory's pro bono solicitor then filed a notice of ceasing to act on 31 March 2023. 2. Before the date fixed for the hearing, my Associate received a copy of an affidavit affirmed by Gregory on 14 April 2023. I did not read the affidavit before the commencement of the hearing, but I now know that it contains evidence given by Gregory in apparent support for an application that he proposed to make for the adjournment of the hearing, substantially on the basis that he had not received the file from his solicitor who had ceased to act, and that he was not currently mentally able to prepare his case even if the file was produced to him. 3. I now know that the affidavit annexed a letter dated 31 March 2023, purporting to have been sent by registered post, in which Gregory's former pro bono solicitor advised him of the orders made by the Court on 31 March 2023, and that she had filed a notice of ceasing to act. The letter included the following: We advise that His Honour was not minded to adjourn the hearing listed for 17 April 2023 and 18 April 2023; so this matter remains listed for hearing commencing 17 April 2023. We advise that you should commence immediate steps to formally prepare for this hearing. His Honour has noted that should your [sic] seek for the hearing to be vacated, you should do so in the proper form. 1. Gregory's affidavit also, as I now know, attached a copy of an email dated 13 April 2023 that Gregory sent to a solicitor in the employ of the solicitor for Brad in these proceedings. The email foreshadowed that Gregory would make an application for an order vacating the 17 April 2023 hearing. The affidavit also annexed reports by Gregory's treating general practitioner, dated 13 April 2023, and a clinical psychologist dated 13 February 2023. The general practitioner's report opined that Gregory was seeking new representation for these proceedings and that on the basis of his medical history and his current condition, he would not be fit to represent himself. The report of the clinical psychologist was in support of Gregory's application for the Disability Support Pension. 2. At 9:34 AM on 17 April 2023, the morning of the hearing, my Associate received an email from the counter manager at the Court's Registry that forwarded an email whose subject was stated to be: "'PRIORITY' – TELEPHONE MESSAGE TO LOCAL COURT (CIVIL)". The notations on the email stated that it had been received from a named person who described herself as a friend of Gregory. The message stated was in the following terms (Exhibit A): The defendant has been taken to hospital and is unable to attend. He is having heart problem. The defendant is requesting an adjournment on this basis and also on the basis that he no longer has legal representation and would like time to find a new lawyer. 1. I provided Brad's counsel with a copy of this email immediately after the hearing was called. 2. Counsel informed the Court that Brad and his wife were present in court, having travelled to Sydney from Queensland for the hearing. 3. Counsel advised the Court that Brad opposed the Court adjourning the hearing on the basis of the informal application that was before it, and that Brad would ask the Court to receive his evidence, make the orders sought in the amended summons, and dismiss Gregory's cross claim on the basis that he had not appeared to prosecute it. 4. On Counsel's application, I gave Brad leave to file in court two affidavits sworn by the employed solicitor who had also travelled from Queensland to instruct counsel at the hearing. Both affidavits were prepared on 14 April 2023 in anticipation of an application by Gregory as foreshadowed by him to apply in person for an adjournment of the hearing. 5. The first affidavit explained that Brad and his wife had travelled to Sydney and incurred costs of $1,285.23 for flights and accommodation. The solicitor had incurred costs of $1,422.50 for the same purposes. The solicitor deposed on information and belief from Brad that he and his wife were in a catastrophic car accident on 9 April 2022. As a result of this accident, both attend extensive medical appointments and are on a strict rehabilitation schedule. The solicitor gave evidence of the significant rescheduling that Brad and his wife had needed to make so that they could change their rehabilitation regime to attend the hearing in Sydney. 6. The solicitor also gave evidence of the significant legal costs that Brad had contracted to incur for his counsel and solicitor as a result of needing them to make available two days of their time to represent him at the hearing. 7. The second affidavit by the solicitor explained the extensive steps that she had taken to try to assist Gregory to prepare himself to conduct the hearing. 8. As Brad's counsel found himself in the position unexpectedly of conducting an ex parte application, he handed to the Court a copy of a medical report dated 14 April 2023 by Gregory's treating psychologist since 29 November 2020 (Exhibit B) and copy of the written submissions that Gregory had sent to Brad's solicitors in support of an application for an adjournment (Exhibit C). The psychologist's report stated that Gregory has been diagnosed with "Post Traumatic Stress Disorder with delayed expression, Major Depressive Disorder, severe and recurrent plus a Generalised Anxiety Disorder". The report requested that Gregory be offered sufficient time to obtain replacement pro bono legal representation, and opined that it was not recommended that Gregory represent himself as this is highly likely to be detrimental to his well-being. 9. In outline, Gregory's written submissions began by claiming that his former pro bono legal representatives made no attempt to contact him by mail, and that if they had attempted to contact him by email or phone call, they had not left any messages since the previous year. Gregory said that he responded to every email he received but he did not get any. Gregory therefore sought to deny the truth of the evidence on which his former pro bono solicitor relied when she applied to the Court for leave to file a notice of ceasing to act for Gregory. The position that Gregory proposed to take on his application for an adjournment of the hearing was therefore highly contentious, as it is improbable that his pro bono legal representatives would have taken steps to cease to act for him unless they were satisfied that he had not responded to their comprehensive attempts to obtain his instructions, so that they felt professionally compromised and unable to prepare and present his case at the hearing. 10. Gregory also made submissions based upon his mental situation and his claimed inability to prepare for the hearing or to conduct it in person. 11. Gregory stated that he expected to know within a month whether the legal assistance that he was applying for from various unnamed providers could be obtained. He also stated that he had spent two days preparing the submission with the help of a friend. I note that the submission is coherent and well-reasoned, and has the appearance of being prepared by someone who had significant knowledge of the issues that would be relevant to an application for an adjournment of an imminent final hearing. 12. As Gregory did not appear to apply for an adjournment or to present his case, the Court has not had the opportunity to receive and consider the evidence on which he wished to rely. 13. The only part of Gregory's evidence that I have read, for the purpose of preparing these reserved reasons, is pars 18 to 20 of Gregory's first affidavit and the annexed copy of the alleged agreement. Gregory said that he and Brad executed the agreement in the period of around 10 to 19 July 2017 at the Port Macquarie property. Gregory said that he found the document on 22 July 2022 in a box in his garage that had suffered water damage, which is the reason why the annexed agreement is barely legible. 14. The document, called "Settlement Agreement and Deed of Release" that is annexed to Gregory's affidavit is a poor photocopy, is smudged, and is very difficult to read. Gregory has annexed an alleged transcription of the agreement that reads as follows: Settlement Agreement and Deed of Release between the parties, Gregory Michael Franks and Brad Alan Cameron, regarding the [Port Macquarie property]. Background On 28 March 2013, the Court of Appeal, Supreme Court of NSW, made the attached decision. The parties have agreed to settle the Court of Appeal judgment at this time, in part, and the [illegible] remainder part on the passing of Alan Franks. Alan also wishes the matter [illegible]. Terms of Settlement Gregory Franks and Brad Cameron agree to fully and finally settle [illegible]: 1) Gregory will pay Brad sixty thousand dollars in cash at the time of signing this agreement. 2) Gregory will pay the amount of thirty thousand dollars in cash after Alan Franks [illegible]. 3) Brad will keep Gregory [illegible] of [illegible] details so [illegible] informed [illegible]. 4) Gregory will abide by clause 2 within one year of Alan's passing dependent upon clause 3. … 1. Clauses 5 to 8 were headed "Deed of Release", and included an agreement by Brad that he would make no further claims on the estate of Dawn and that upon Gregory complying with clause 2 Brad would discharge and release Gregory from any claims. Brad was also required to remove the caveat that he had lodged against the title to the Port Macquarie property, apparently when informed of the passing of Alan. 2. The transcription suggests that the document was signed by Brad and Gregory and their signatures were witnessed by the solicitor and Alan. 3. The following is an outline of Brad's counsel's written opening submissions on the strength of Gregory's cross claim. I have included it only so that these reasons will give a broad indication of what counsel considered were the issues that would be raised on the cross claim. 4. Brad denies that he signed the agreement upon which Gregory relies, and has provided evidence that he did not travel to Port Macquarie in the 10 day period in July 2017 that Gregory alleges was the period in which Brad signed the agreement. Brad was at public events on the Gold Coast during a substantial portion of the period, and this is supported by photographic evidence, as well as evidenced by Brad's wife. Brad denies that he was paid any money by Gregory, and Gregory has not provided any evidence of a receipt. The alleged agreement upon which Gregory relies is, according to counsel, barely legible. The document appears to be stamped as a copy, but Gregory has not produced the original, nor has he explained what happened to it. The amount of money claimed by Gregory to have been paid to Brad has not been established. The solicitor who Gregory claims prepared the agreement died in February 2021, and a subpoena issued to the executor of the solicitor's estate has not returned any relevant documents. The alleged witnesses to Brad's signature to the document are now deceased. Gregory has not produced any correspondence between him and Brad prior to the alleged agreement. 5. Faced with the unexpected difficulty of deciding how to proceed, I enquired of Brad's counsel whether there was any evidence of the value of the Port Macquarie property. I did so with the hope of gaining information that would assist me to gauge the effect of an adjournment of the hearing having regard to the relationship between the costs of the parties and the value of the property that was the subject of the dispute. Counsel advised that there was no formal evidence of value but he was aware of an appraisal that suggested that the value of the property was in the range $800,000 to $900,000. He also advised that the solicitors who acted for Brad and Gregory in the family provision proceedings had lodged caveats against the title to the property that were apparently intended to secure payment of outstanding legal costs in relation to those proceedings. There was no information available about the amount of those costs. It therefore seems likely that if Brad succeeds in these proceedings and the Port Macquarie property is sold by trustees appointed by the Court, he will receive no more than $300,000, less the costs of sale and his costs of the proceedings. In that event, Gregory may be ordered to pay part of Brad's costs that will, as a practical matter, come out of Gregory's share in the proceeds of sale of the property. It seems probable that both Brad and Gregory will have to pay a significant proportion of their respective shares in the proceeds of sale to their solicitors in the family provision proceedings. If that is true, it follows that there is a real risk that justice will be denied in these proceedings if circumstances cause the parties' costs to be increased by any amounts that are not absolutely necessary. Furthermore, it also appears that any delay in the determination of the proceedings will prevent the parties from satisfying their liabilities to pay the costs of the family provision proceedings. 6. In these circumstances, I decided that the most appropriate course for the Court to follow to satisfy the requirements of s 56 of the Civil Procedure Act 2005 (NSW) was as follows: 1. I would not adjourn the hearing on the basis of the informal application made by Gregory. 2. As Brad and his wife (being a witness) were present in Court with their legal representatives, I would hear Brad's application on his amended summons by receiving his evidence and his counsel's submissions, so that the Court would be able to give judgment on that claim at an appropriate time, and so that the time of the Court would not be wasted. 3. Brad's counsel then read the affidavits upon which Brad relied in support of the relief sought in his amended summons. Counsel informed the Court that he would rely upon his written submissions. 4. Given that Brad's claim was for an order under s 66G of the Conveyancing Act for the appointment of trustees for sale of the Port Macquarie property, and that Brad, as the holder of a beneficial interest in possession of one third of the title to the property, had a right to the orders sought in the absence of any valid defence mounted by Gregory, I informed counsel that I was satisfied in principle that Brad was entitled to the orders that he sought, subject to what might eventuate as a result of the course that the Court would take to deal with Gregory's cross summons. 5. As Gregory had not appeared to prosecute his cross claim, as matters stood on 17 April 2023, Brad was entitled to an order that the cross claim be dismissed for want of prosecution. 6. However, it would be inappropriate for the Court to make any formal orders on the amended summons or the cross claim, as that might lead to circumstances where the Court became functus officio at first instance by reasons including the running of time, and so lose the power to control the just determination of the proceedings in a manner that would not require the intervention of the Court of Appeal. 7. As the Court had only received informal notice that Gregory may have been unable to appear in court to make an application for the adjournment of the hearing, or to prosecute his claim if an adjournment was not granted, at the last moment, the Court had to face the possibility that the reason given for Gregory's non-appearance was genuine and would, if properly proved, have caused the Court to adjourn the hearing. Alternatively, the reason may not have been genuine, or for some other reason the circumstances may not have justified the Court in making an order that the hearing be adjourned. Accordingly, the Court was required to formulate orders that would permit the just, quick and cheap completion of these proceedings having regard to these uncertainties. 8. The formulation of those orders would need to take into account that the Court had successfully arranged for Gregory to receive adequate pro bono legal representation, and that his evidence had been prepared with the advice of his legal representatives. However, on the evidence that had been received by the Court, Gregory had lost the advantage of his pro bono legal representation because he had not provided his legal representatives with the instructions that they considered were necessary to enable them to fulfil their professional obligations to Gregory and to the Court. Consequently, there is ground for considerable doubt that Gregory will be able to engage and instruct new legal representatives in a timeframe that will permit the Court to list the proceedings for final hearing in a way that will do justice to Brad. 9. Given the high level of uncertainty as to Gregory's real position, the Court should give Gregory an adequate but relatively brief opportunity to provide proper evidence to the Court that will establish the truth of the reason that was given informally as to why Gregory was medically unable to appear. 10. Gregory should be informed that, by reason of his non-appearance on the date fixed for the final hearing of the proceedings, the Court will make the orders sought by Brad in his amended summons and will make an order dismissing the cross claim, unless Gregory makes a proper formal application that has the effect of retrospectively justifying his non-appearance, and persuading the Court that it should act upon the same basis as it would have acted had it adjourned the proceedings on 17 April 2023, save that it will treat the part of the hearing that occurred on that date as part of the final hearing. 11. Any application that Gregory makes must accommodate Brad's entitlement to procedural fairness and his right to a reasonably early completion of these proceedings. The application must be formally made in accordance with the Court's procedures and be supported by evidence in proper form. In the ordinary way, Brad will be given the opportunity to contest any application made by Gregory. 12. If Gregory wishes to be legally represented, he must act to retain satisfactory legal representation quickly and effectively. As the proceedings could not be determined completely on the date fixed for the hearing, in part because Gregory did not conduct himself in a way that preserved his pro bono legal representation, the Court cannot permit any further indefinite delay while Gregory engages in what may be a forlorn endeavour to secure legal representation. Furthermore, at the appropriate time, if any application is made by Gregory, the Court will have to consider the proper balance between Brad's entitlement to finality of these proceedings and the psychological difficulties that Gregory apparently faces in conducting the proceedings himself without legal representation. 13. I will reserve the costs of the hearing on 17 April 2023, and will deal with those costs either in chambers or at the time of the listing of any application made by Gregory. Gregory will need to take into account that Brad has incurred all of the costs involved in the appearance on 17 April 2023, and is not in any way responsible for the inability of the Court to hear and determine the proceedings in the two days that were allotted for the hearing. 1. In these circumstances, the Court's orders are as follows: The Court: 1. Notes that the Court declined on 17 April 2023 to adjourn the hearing of these proceedings that was fixed to occur on 17 and 18 April 2023 on the basis of the informal notice given to the Court that the defendant wished to make an application that the hearing be adjourned and that he was unable to appear at the hearing by reason of his medical condition. 2. Notes that, subject to further order, the plaintiff is in principle entitled to the orders sought by the plaintiff in his amended summons. 3. Notes that, subject to further order, the plaintiff is in principle entitled to an order that the defendant's cross claim be dismissed by reason of the non-appearance of the defendant and his failure to prosecute his cross claim. 4. Stands over the proceedings, subject to further order on the basis that they are part heard, so that they will be determined in chambers or at a further hearing to be notified to the parties by the Associate to Robb J. 5. Grants leave to the defendant to file a notice of motion supported by appropriate affidavit evidence: 1. for an order to be made retrospectively adjourning the hearing that commenced on 17 April 2023 from the time following the receipt into evidence of the affidavits read by the plaintiff in support of his claim in the amended summons; and 2. for appropriate case management orders for the further prosecution of the defendant's defence of the plaintiff's claim in the amended summons and the defendant's claim in the cross claim. 1. Orders that any notice of motion and supporting affidavit evidence filed by the defendant in accordance with the leave granted by order 5 shall be: 1. filed in the Registry within 21 days of the publication of these reasons for judgment; and 2. be served on the plaintiff's solicitors and sent electronically to the Associate to Robb J on the same date that they are filed; and 3. given a return date before Robb J for directions only on a date to be advised to the parties by the Associate to Robb J after she receives the notice of motion and affidavits. 1. Directs that any affidavit evidence filed by the defendant in accordance with order 6 shall include the evidence of a medical practitioner who examined the defendant in hospital on 17 April 2023, including any diagnostic or treatment records of that date, to substantiate the defendant's claim that he was unable to attend court due to attending hospital for a heart condition. 2. Reserves the costs of the hearing fixed for 17 and 18 April 2023 on the basis that the costs will be dealt with in chambers or in conjunction with any notice of motion filed by the defendant in accordance with the leave granted by order 5. 3. Orders the plaintiff to notify the defendant of these orders: 1. by registered post to [the address of the Port Macquarie property, which will be correctly stated in the formal orders issued by the Court]; and 2. by email to [the defendant's email address, which will be correctly stated in the formal orders issued by the Court]. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 April 2023