Supreme Court New South Wales Medium Neutral Citation: Cameron v Franks (No 2) [2023] NSWSC 929 Hearing dates: 9 June 2023 Date of orders: 11 August 2023 Decision date: 11 August 2023 Jurisdiction: Equity Before: Robb J Decision: The defendant's 18 May 2023 notice of motion seeking a retrospective adjournment of the proceedings on hearing on 17 April 2023 is dismissed. See full orders at [63]. Catchwords: CIVIL PROCEDURE — hearings — adjournment — where cross claimant did not appear at hearing and leave was given to file notice of motion seeking retrospective adjournment — where evidence does not establish extenuating circumstances sufficient to justify adjournment — notice of motion dismissed Legislation Cited: Conveyancing Act 1919 (NSW), s 66G Uniform Civil Procedure Rules 2005 (NSW), rr 7.36(1), 29.7 Cases Cited: Franks v Franks [2011] NSWSC 1261 Franks v Franks [2013] NSWCA 60 Cameron v Franks [2023] NSWSC 437 Category: Procedural rulings Parties: Brad Alan Cameron (Plaintiff) Gregory Michael Franks (Defendant) Representation: Counsel: M Cobb-Clark (Plaintiff) Gregory Michael Franks (Defendant in Person) Solicitors: Attwood Marshall (Plaintiff) File Number(s): 2022/00010944 Publication restriction: Nil JUDGMENT 1. These proceedings were commenced by the plaintiff, Brad Alan Cameron, against the defendant, his brother, Gregory Franks, by summons filed on 13 January 2022. 2. Mr Cameron sought orders in standard form for the appointment of trustees for sale of a property at Port Macquarie (the Property) pursuant to s 66G of the Conveyancing Act 1919 (NSW). Mr Cameron sought orders that the net proceeds of sale be divided equally between himself and Mr Franks. By amended summons filed on 29 April 2022, Mr Cameron corrected the proportion in which he sought the net proceeds of sale to be divided to be one third to himself and two thirds to Mr Franks. This reflected the fact that although this Court in Franks v Franks [2011] NSWSC 1261 had made a family provision order that the Property be held equally between the parties, on appeal in Franks v Franks [2013] NSWCA 60, the Court of Appeal varied the family provision orders such that Mr Cameron would be entitled to one third and Mr Franks two thirds of the Property. These orders were subject to a portable life interest in favour of the parties' father who has now passed away. 3. Mr Franks filed a cross summons on 4 April 2022 that he evidently prepared himself. Later, on 28 July 2022, Mr Franks filed a further cross summons, this time prepared by a solicitor, Ms Joanne Kinslor. This cross summons 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 Property] 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 Property]; and b. further or in the alternative, is not a co-owner of [the Property] 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. 1. In the balance of the cross summons, Mr Frank sought certain alternative relief to the effect that Mr Cameron only holds a share of the Property equal to $30,000 or, in the alternative, 30% of one third of the Property, and Mr Franks holds the remaining share. 2. The issues that arose on Mr Cameron's amended summons are straightforward because, on the basis of Mr Cameron's claim that the Property was co-owned by himself and Mr Franks, he was entitled to the relief that he sought almost as of right. 3. The issues that arose on Mr Franks' cross summons must be gleaned from the affidavits served by Mr Franks. Mr Franks affirmed the following in his 28 July 2022 affidavit: 18. On around 10-19 July 2017, the Plaintiff and Hilton King, a solicitor who I had met through my involvement with the Residence Action Network in Port Macquarie, came to the property. I was already there with Dad. 19. We executed an agreement that had been prepared by Hilton, by which I would buy out the Plaintiff's life interest in the property. The Plaintiff and I signed it and Dad and Hilton witnessed it. A copy of the agreement is annexed to this affidavit and marked "GF6". 20. I located this document on the evening of Friday, 22 July 2022, after having searched for some time. It had been in a box in my garage and the box had suffered water damage as a result of a hot water system that broke and leaked in late 2017. That is why the document is difficult to read. Annexed to this affidavit and marked "GF7" is my transcription of the text of the agreement, based on what I can read and work out from the document. 21. I had the money spread out on the table in $1,000 bundles ready for the Plaintiff who then counted the money to make sure he got the full amount. He removed the elastic bands, counted the individual bundles, and then put the bands back on. After he had counted the money he said words to the effect of, "Yeah, that's good thanks." I gave him a bag to take the money away in. 22. The Plaintiff then stood up to leave with the money. He placed his copy of the signed agreement in the bag with the money. Before the plaintiff left Hilton said to him words to the effect of, "Don't forget you need to keep us informed of your address so we can reach you after Alan passes." The plaintiff replied to the effect of "yes". 1. The substance of Mr Cameron's response is found in his 26 August 2022 affidavit, in which he said: 20. I refer to paragraphs 18 and 19 of Gregory's Affidavit, and to the document at GF6 to Gregory's Affidavit. 21. I have not seen that document prior to receiving Gregory's Affidavit. 22. The signature on the document next to my name is not my signature. I did not sign the document. I did not agree to any of the things that are included in the document. I did not discuss any of those matters with Gregory or anyone else. 23. In late 2011, I changed my name from Brad Alan Franks to Brad Alan Cameron. I refer to paragraph 5 of my previous affidavit. When I changed my name, I also changed my signature. 24. When I commenced family provision proceedings in 2011, I did so under my former name. I also signed documents in those Court proceedings using my former name. I also stated that my address was [address stated]. Annexed to my affidavit and marked C is pages 1 and 2 of affidavit in the family provision proceedings. 25. I did not otherwise tell my brother that my address was [as stated in par 24]. 26. My address as at July 2017 was not [address as stated in par 24]. It was [different address stated]. Annexed to my affidavit and marked D is a copy of a driver's licence renewal notice dated 7 July 2017 that was sent to me at that address in [placed stated]. 27. I refer to paragraphs 21 and 22 of Gregory's Affidavit. I did not receive any money from Gregory. I was not at the property in Port Macquarie at any time between 10 and 19 July 2017. I did not count any money. I did not say the words alleged in those paragraphs. 1. It is not the purpose of these reasons to resolve this dispute or make any comment concerning the strength of the parties' cases. I will note, however, that the alleged agreement that is Annexure GF6 to Mr Franks' affidavit is a highly smudged photo copy which is mostly illegible. The transcription that was prepared by Mr Franks that is Annexure GF7 gives as Mr Cameron's address the address stated in par 24 of Mr Cameron's affidavit, and not the changed address that Mr Cameron said that he had at the time of the alleged agreement. 2. Both of the alleged witnesses to the agreement relied upon by Mr Franks had passed away by the time these proceedings came to hearing. 3. Mr Franks was able to file his second cross claim with the help of a solicitor because of an order made by this Court on 16 May 2022 pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 7.36(1) that Mr Franks 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. Pursuant to that order, Mr Franks received the benefit of the services of Ms Kinslor and a barrister to represent him. 4. After a considerable number of interlocutory hearings, on 21 October 2022 Peden J set the matter down for hearing before me on 17 April 2022 with an estimate of two days. 5. On the application of Ms Kinslor, I heard an application on 31 March 2023 for an order giving Ms Kinslor leave to cease to act for Mr Franks in the proceedings. I gave an ex tempore judgment and made orders as sought by Ms Kinslor. As the judgment has not been formally published, I will set it out here in full: 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 solicitor 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 obvious 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. 6 I make the following orders: (1) I grant leave to Joanne Jennifer Kinslor of Kinslor Prince Lawyers to cease to act for the defendant pursuant to Uniform Civil Procedure Rules r 7.29(2)(a). (2) I direct the solicitor for the defendant to notify the defendant of this order within three 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. (3) I grant leave to the solicitor for the plaintiff to inspect the court file in these proceedings, and, by arrangement with the registry, to make copies of any documents on the file, with the intent that that 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. As those short reasons say, Ms Kinslor had tendered evidence that satisfied me that Mr Franks had not properly engaged with his pro bono lawyers, had not provided them with the instructions that they sought, and had created the situation where both his barrister and his solicitor had been driven to seek the leave that they needed to be permitted to return their brief or file a notice of ceasing to act, as the case may be. Although I have not reviewed the evidence prepared in these proceedings on behalf of Mr Franks by his pro bono legal representatives, on the face of it they had assisted Mr Franks to achieve the position where he was able to defend Mr Cameron's case and to prosecute his own cross claim against Mr Cameron. I infer that Mr Franks would have been represented by solicitor and counsel at the hearing if he had cooperated and provided proper instructions to his legal representatives. 2. At the hearing on 17 April 2023, Mr Cameron was represented by counsel but there was no appearance for Mr Franks. The circumstances were that Mr Cameron and his wife had come down to Sydney to attend court at considerable cost and inconvenience to themselves. After hearing from Mr Cameron's counsel, and having regard to the fact that Mr Cameron would be entitled to the orders that he sought in his amended summons, subject only to the effect of the cross summons, I made orders that included the following, by reasons for judgment published on 28 April 2023 as Cameron v Franks [2023] NSWSC 437: 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: (a) 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 (b) 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. 6 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: (a) filed in the Registry within 21 days of the publication of these reasons for judgment; and (b) 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 (c) 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. 7 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. 8 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… 1. It will be convenient to set out the part of my reasons for judgment that dealt with the significance of Mr Franks' failure to appear at the hearing, as follows: 20 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. 21 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. 22 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. 23 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. 24 I provided Brad's counsel with a copy of this email immediately after the hearing was called. 25 Counsel informed the Court that Brad and his wife were present in court, having travelled to Sydney from Queensland for the hearing. 26 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. 27 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. 28 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. 29 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. 30 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. 31 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. 32 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. 33 Gregory also made submissions based upon his mental situation and his claimed inability to prepare for the hearing or to conduct it in person. 34 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. 35 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. … 40 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. 41 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. 42 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. 1. On 18 May 2023, Mr Franks filed a notice of motion and a supporting affidavit affirmed by himself which were obviously prepared by Mr Franks. The relief sought by Mr Franks in the notice of motion was: 1. Adjournment of hearing dates of 17 & 18 April. 2. Kinslor Prince Lawyers return all files to the Defendant. 1. I listed Mr Franks' notice of motion to be heard on 9 June 2023. On that occasion, Mr Cameron was represented by counsel. Mr Franks represented himself and appeared by telephone at his request and for his convenience. 2. I record that notwithstanding the claims made and such medical evidence as there was concerning Mr Franks' psychological disabilities, Mr Franks conducted his application in a coherent and lucid way that gave the Court no reason at all to understand that Mr Franks was suffering from some disability that made him any more vulnerable than any other lay party who was required to represent themselves in proceedings in this Court. 3. Mr Cameron resisted the application by Mr Franks that would have had the practical retrospective effect of avoiding the Court making an order dismissing Mr Franks' cross claim on the basis of an absence of an appearance by Mr Franks on 17 April 2023. The making of the orders sought by Mr Franks would require the Court to find a date to relist the proceedings on the cross claim to be heard by me at some date in the future. Counsel for Mr Cameron submitted that the reasons given by Mr Franks for not appearing to prosecute his cross claim on 17 April 2023 were disingenuous and not credible on the evidence that was before the Court. Counsel pointed to the significant disabilities that Mr Cameron and his wife confronted, and submitted that it would be most unjust for the Court to allow Mr Franks' application, which would commit Mr Cameron to a further long wait for justice, and would impose upon him a repetition of the significant burden that he had suffered in inconvenience, anxiety and costs in coming to Sydney on 17 April 2023 to seek justice from this Court. 4. It will be appropriate to set out the evidence in Mr Franks' 18 May 2023 affidavit in full, as follows: 1. I am the defendant. My former lawyers made no attempt to contact me by mail. A lawyer who cannot reach their client by email would usually post a letter seeking an urgent response, not cease to act. I responded to every email I received; it appears that I did not get some. It was not in my interest to ignore my own pro-Bono lawyers. 2. My former lawyers did not post to me any written notice of their intention to Cease to Act, or within 28 days' notice, as required by law. As the plaintiff's lawyers seem to agree, the first written notice from my lawyers arrived at a local post office on 28 March, only 3 days before they ceased to act. I am advised that allowing them to cease to act with no evidence, or claim, that they had notified me by post, or within 28 days' notice, and refusing to vacate the hearing date, was appealable. 3. As my emails with the plaintiff's solicitor confirmed, I have not received my files from my former lawyers. The receipted delivery from them only contained 3 pages which I already had copies of (which I had given to them), as noted in their own covering letter. The plaintiff's lawyer has advised she provided over 1,000 pages under one subpoenae a loan to my former lawyers, which I still do not have. 4. I was given less than 2 weeks' notice over the Easter holidays to find new lawyers. Appointments for legal services that I may be eligible for due to mental illness, living in regional Australia, or being gay, are booked many days in advance. I have called lawyers who say they could do such work and might consider a payment arrangement but could not prepare my case with such short notice. 5. My application via express post to vacate the hearing date was received at the court's post office 5 April, allowing time to consider it before the hearing date. On 6 April the plaintiffs' lawyer, after I advised her of my application, asked the court to hear it before the hearing date. The court refused. It did acknowledge receipt of my application by post and email, but returned it to me on 17 April by ordinary post, with a note that they refused to file it without leave of His Honour (which he had already given in his judgment of 31 March). 6. Evidence of my mental health was provided to the court 5 April and to the plaintiff's lawyer on 6 April from Dr Nicholson. The Plaintiffs' lawyer did not ask for court attendance from any doctor at that time. My doctor stated she was happy to provide more information if the court sought it. The clinical psychologist's report gives an indication as to my prognosis. She states the diagnosis of PTSD, which was only made in February, will improve with proper counselling. My treating psychologist's report agrees with that and both the GPs. 7. I note that last year the plaintiff sought my agreement for him to participate via AVL due to his PTSD, and only supported that claim with one GP letter. I raised no objection to his request, although my former lawyers thought it should have been supported by a psychologist report. I had understood that the plaintiff would be attending the hearing on 17 April via AVL, although no updated or expert reports as to his physical or mental health conditions have been provided. That would have meant no transport or extravagant accommodation costs for them. 8. I purchased a plane ticket and arranged accommodation for myself. It was brought to my attention that the plaintiff, his wife, and his new solicitor were attending in person at 5:30 pm on 14 April. The plaintiff has gone to considerable time and effort to suggest in a last-minute affidavit, relying on hearsay and incompetent internet searches, that I did not have a plane ticket. These suggestions are false. A justice seeking person would not mislead the court as to my integrity in an affidavit when all the court asked for was proof of my hospitalisation. 9. I have made efforts to find a lawyer through contacting legal services available for those with mental health issues, or those living in regional Australia, or those who are gay. Legal aid does give advice in my circumstances but not representation. I have sought help from friends in preparing basic documents in a way that seems acceptable to the court and the plaintiff's lawyers. My friend cannot assist me in court but can help with document preparation with reasonable time. 10. The report from my clinical psychologist does suggest a prognosis that my condition will improve with counselling for the PTSD, as diagnosed in February this year. That trauma has been linked to my childhood experience with the plaintiff and is why my treating psychologist and GP suggest it's harmful for me to represent myself in court, particularly as cross examination of the plaintiff is required. My job search provider, ETC Port Macquarie, has not required me to look for work for the past 3 months due to my mental health and my application for a disability pension, which has just been approved. 11. The plaintiff, for no explicable reason, took 18 months to commence this lawsuit without contacting me first (according to him for 14 months) from the time he became aware of my father's death. He waited to take any action to enforce the original court judgment until after my lawyer, who drafted and signed the 2007 agreement with him, had died. The unexplained delay in him commencing this action has clearly prejudiced my defence, (with my key witness and lawyer dead) while he delayed seeking what he now claims he was entitled to upon my father's death. 12. The plaintiff's claim commenced with legal representation in January 2022 and persisted in claiming relief based upon the original court decision of 2011, which awarded him one half of my home. They pretended that my successful appeal in 2013 which reduced his share to one third had not happened. His solicitor at that time was the same one who represented him at both the 2011 hearing and the 2013 appeal. My promptings to change their claim to the appeal decision were ignored. I had to bring the false claim to the court's attention. The plaintiff's claim was attempting to use the court to defraud me of an additional 17% of my home (approximately $140,000 of value). That is the 'justice' Brad sought. 13. The hearing date was set down 6 months ago. There is no evidence of, and would be no reason for, the plaintiff to have booked appointments with therapists (not major medical appointments as claimed) so far in advance. He was going to those therapists, according to his request for AVL attendance, last year. There is no evidence of any treatments being rescheduled from the hearing dates. He chose to attend court in person with his wife and his solicitor from Queensland. I did not refuse their AVL request. He commenced action in NSW from Queensland. In response to his action, I have had to arranged [sic] airfare and accommodation too. 14. As to the plaintiff's claim for costs. I notified the plaintiff's solicitor 6 April that I had not received my file, and that my pro bono solicitor had ceased to act without the required notice, leaving me unrepresented. I provided a doctor's report about my inability to represent myself at such short notice. Only a qualified professional can assess my ability to prepare for and represent myself in court based upon their clinical investigation of my mental health and their expert knowledge of my PTSD condition. I understand the court relies on expert reports. 15. I am awaiting responses from legal service providers as to assistance on a pro bono or reduced fee or deferred fee basis and am currently negotiating with others. Given reasonable time, and my file, I should be able to work on my case with support from a friend. It was part of my pro bono application that I had mental health problems, my former lawyers, and the plaintiff's [sic], were aware of my limitations. As a disability support pension for PTSD has just been approved, I can apply for bank loans to help me with any legal costs. 16. A delay of a few months is hardly prejudicial to the plaintiff's case. It is already 10 years since the judgment he wishes enforced. The plaintiff waited 18 months after he says he became aware of Dad's death before even commencing this action. Hardly evidence of him being in a hurry for 'justice'. His only witness is his wife, and her vague evidence from 6 years ago is unlikely to get any vaguer in a few months. I seek justice against the attempt to defraud me of my home when he already accepted a cash settlement. I have made the plaintiff multiple offers of settlement, the last only a month ago, he has not responded or made any offers this year. 17. I was hospitalised on 17 April which prevented me from attending the hearing, 11 days after I sought to have the hearing dates vacated due to my health and loss of legal representation. A friend informed the court prior to the hearing commenced that I was in Port Macquarie Hospital, which could be easily confirmed. I have already sent proof of that health incident to the court. It includes a report I obtained from the ambulance service where they identified by ECG my heart condition (1st degree heart block) at my home, and they told me I needed to go to hospital for testing. I supplied the discharge hospital summary confirming I was there until 2:30 pm. My friend transported me home. I supplied evidence of my missed flight for which I had paid. It is contrary to usual medical advice to fly while having a heart incident and contrary to air travel advice. 1. I will consider the annexures to Mr Franks' affidavit when I deal with the issues to which the annexures are relevant. 2. Mr Franks began his affidavit by complaining that he did not receive sufficient notice that his legal representatives intended to cease acting for him shortly before the hearing that was fixed to take place on 17 April 2023. I was satisfied by the evidence tendered by Ms Kinslor on 31 March 2023 that Mr Franks' former legal representatives communicated with Mr Franks by letter and email between 14 February 2023 and 21 March 2023 to the addresses given to them by Mr Franks, culminating in counsel notifying Mr Franks at his email address on 1 March 2023 that she had returned the pro bono brief and no longer acted for him. On 22 March 2023, Ms Kinslor notified Mr Franks by email that she had taken steps to obtain leave to file a notice of ceasing to act for him. 3. On 4 April 2023, Mr Cameron's solicitors sent a letter to Mr Franks by email that enclosed a copy of the notice of ceasing to act filed by Ms Kinslor on 31 March 2023. The letter also contained a copy of the Real Property List Practice Note SC Eq 12 and explained the process by which the court book would be prepared, and sought Mr Franks' cooperation. 4. As for Mr Franks' claimed difficulty in obtaining his file from Ms Kinslor, Mr Franks has only made bare assertions on that issue and not explained the steps that he has taken to obtain his file. On 11 April 2023, Mr Cameron's solicitors advised Mr Franks at his preferred email address that they had been informed by his former lawyers that his original documents were delivered to him via registered post at the Port Macquarie post office on 4 April 2023, with a tracking number that was stated in the email. Mr Cameron's solicitors by the same email gave Mr Franks a link to the draft court book and index. By a further email dated 12 April 2023, Mr Cameron's solicitors noted that Mr Franks either had collected or had delivered to him his previous solicitor's file, as the tracking on the Australia Post website said that delivery was complete. 5. In a response made on 13 April 2023, Mr Franks informed Mr Cameron's solicitors that the file of his previous solicitor was not included in the envelope received by Mr Franks. Mr Cameron's solicitors in turn responded on 14 April 2023 that they were "informed by your former lawyers that your original documents, including the documents we have sought under the notice to produce, were delivered to you under" the tracking number stated in the earlier email. 6. On 13 and 14 April 2023, Mr Cameron's solicitors sent emails to Mr Franks that contained a link to the electronic court book in the first case and an electronic PDF of the court book in the second case. The court book that was delivered to the Court on behalf of Mr Cameron was properly prepared, containing the pleadings, including Mr Franks' unfiled notice of motion seeking an order for the vacation of the hearing, as well as all of the affidavits that had been filed, with proper cross references from annexures to the relevant court book pages. The court book contained all of the documents that were necessary for the conduct of the hearing. Mr Cameron's solicitors recommended that Mr Franks bring a printed version of the court book to the Court for the purposes of the hearing. 7. On 6 April 2023, my Associate sent a standard form email to the parties, which explained that the Court's current practice was that the hearing would proceed by way of a live hearing, but advised that, if there was any difficulty with any self-represented party attending in person, the Court would hear matters using a virtual court room either by audio-visual link or telephone, provided an application was made as early as possible and contained a clear statement of the basis for the application. It is clear from par 7 of Mr Franks' affidavit in which he referred to the earlier application by Mr Cameron to participate in the hearing by audio-visual means that Mr Franks was well aware that if he had any difficulty in travelling from Port Macquarie to Sydney to appear at a hearing in person, it was open to him to make an application to appear by audio-visual means or telephone by making an application to my Associate. 8. On the morning of 28 April 2023, before I delivered the reserved judgment that was delivered on that day, Mr Franks sent an email to my Associate in which he advised that his internet service in Port Macquarie was currently unreliable for an audio-visual appearance, and sought advice as to whether there was a telephone number that was available to permit him to attend the delivery of judgment remotely by telephone. My Associate responded by giving Mr Franks the relevant telephone number and instructions by email. Mr Franks ultimately took advantage of this facility by appearing at the hearing on 9 June 2023 by telephone. 9. Mr Franks was entitled to make his own decision as to whether he preferred to participate in the hearing in person or remotely by audio-visual or telephonic means. He apparently chose the former as he purchased a plane ticket to fly from Port Macquarie to Sydney on the morning of the hearing. I have only mentioned the communications that advised Mr Franks of the alternative possibility that he could participate in the hearing remotely, because they establish that Mr Franks had the means to communicate with the Court if the need arose, and that it was possible for him to ask to be allowed to participate remotely if that was more convenient to him. 10. Mr Franks accepted in cross-examination that the flight on which he had booked a ticket was due to leave the airport at Port Macquarie at 7:10 AM on the morning of the hearing. It is at best rash that Mr Franks put himself in the position where his ability to appear at a hearing in the Supreme Court in Sydney at 10 AM required that he fly from Port Macquarie leaving at 7:10 AM. 11. However, Mr Franks has claimed that he was unable to appear in court because of a medical incident that led to him calling an ambulance on the morning of 17 April 2023, which led to him being conveyed to Port Macquarie Base Hospital for observation and tests with the result that he was not discharged until 12:07 PM on that day. 12. Mr Franks annexed the Ambulance Electronic Medical Record to his affidavit. That record showed that Mr Franks called the Ambulance Service at 7:11 AM and that the ambulance reached his home and the paramedics interviewed him at 7:20 AM. The notes made by the paramedics included that Mr Franks "noticed chest heaviness after waking this morn approx 6:40 AM", and that he had experienced "chest pain". The paramedics recorded "[patient] states stress ++ lately". 13. Mr Franks also annexed the Hospital's Discharge Referral Note. The record included: "Gregory presents with chest pain (2/10) and chest tightness. His ECG is negative for any acute ishemic [sic] changes/cardiac pathology. His serial troponin all negative. He was clinically stable and pain-free at the time of discharge…" The record stated that Mr Franks had given a history including: chest pain started at 630 am this morning, upon waking up is due to have court case in Sydney regarding his house, and feels anxious and stress about it mean to have flight to Sydney at 0730 am, missed the flight described as chest tightness, in the middle of the chest… 1. The Discharge Referral Note included a medical certificate signed by a medical intern stating that Mr Franks was unfit for: "Usual activities". 2. Mr Franks was cross-examined on the basis that, if he woke up at 6:30-6:40 AM, he could not seriously have expected to catch an aeroplane leaving Port Macquarie airport at 7:10 AM. Mr Franks responded by denying that he woke up at that time, and said instead that he woke up at about 5:30 AM and went back to bed dressed in the tracksuit in which he intended to fly to Sydney. Mr Franks repeatedly denied that the paramedics and the medical intern had correctly recorded what he told them in relation to the time that he woke up in the morning. Mr Franks sought to explain their errors by saying that the information that he provided mostly concerned his medical history, and the paramedics and the medical intern did not take notes and must have recorded the time of his waking up later, so that they made errors. 3. Mr Franks said in cross-examination that he did not experience chest pains at 5:30 AM when he woke up and that he only did so at about 6:30 AM. He sought to explain the fact that he did not call the Ambulance Service until 7:11 AM by saying that he carried out some exercises that he expected would relieve his chest pain, but the exercises were unsuccessful. 4. It will be recalled that order 7 that the Court made on 28 April 2023 was as follows: 7 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. 1. I included the requirement that the evidence to be filed by Mr Franks "shall include the evidence of a medical practitioner who examined the defendant in hospital on 17 April 2023", because it was obvious that Mr Franks may have relied upon a sham medical event as a pretext for avoiding the proceedings being heard on that date, so that it would be necessary for the Court to have considered medical evidence by a doctor who treated Mr Franks at the Hospital in order for the Court to be in a position to make a sound judgment about whether or not Mr Franks' failure to appear in court was the result of extenuating circumstances for which he was not responsible. 2. Although Mr Franks annexed diagnostic and treatment records to his affidavit, he did not provide evidence from a doctor who examined him, and did not explain why he had not done so. I consider this to be a serious omission, as the symptoms recorded by the paramedics and the medical intern, being limited to chest pain and chest tightness, and stress and anxiety due to the imminence of the hearing, would not usually be considered sufficient to justify a party in not appearing in court. Mr Franks' decision to leave it to the morning of the hearing to fly to Sydney from Port Macquarie plainly exacerbated the difficulty. The absence of direct medical evidence on this issue is problematic, because the Court has no scientific means of deciding whether symptoms that would be experienced by many litigants in person, and indeed many practitioners, were in fact of a seriousness that justified hospital intervention. As it has happened, the sequelae to the event are not consistent with Mr Franks having any serious cardiac pathology. 3. I do not consider the fact that the paramedics decided that it was warranted that Mr Franks be conveyed to the Hospital for observation and testing is of great significance. Mr Franks waited until 7:11 AM to call the Ambulance Service, which was one minute after his flight was due to leave Port Macquarie airport. As a practical matter, Mr Franks decided for himself that his physical symptoms justified him in not travelling to Sydney to appear at the hearing. 4. Mr Franks annexed to his affidavit additional medical evidence that did not deal directly with the events of the morning of 17 April 2023. Mr Franks relied upon a psychological assessment dated 13 February 2023 that was prepared in support of his application for the Disability Support Pension, in which a clinical psychologist diagnosed Mr Franks as having Post Traumatic Stress Disorder (PTSD) and Major Depressive Disorder. 5. A general practitioner at the Sydney based practice where Mr Franks "is a regular and long term patient" recorded in a certificate dated 4 April 2023 that Mr Franks had been diagnosed with PTSD and stated: "I would recommend that for medical reasons, he should defer his court hearing date". 6. In a report addressed to me by name dated 13 April 2023, Mr Franks' treating general practitioner, located at the same Sydney practice, explained Mr Franks' medical condition and gave the following opinion: I understand that Greg is seeking new representation for the upcoming case in the Supreme Court. I wish to advise that in my opinion, based on my knowledge of Greg's medical history and his current condition, that he would not be fit to self-represent – in fact, it is likely that doing so would exacerbate his PTSD and anxiety, as some of the triggers to these condition [sic] relate to the actions of the Plaintiff in this case. We would request understanding in terms of the above matters and request additional time for Greg to be able to access the appropriate supports and legal advice. 1. A further report dated 14 April 2023 by a treating psychologist from an online psychology practice included the following: … Greg is a vulnerable man who is dealing with the added burden of his current court case. I have supported Greg throughout this process and I am aware of the history with his lawyers and the lead up to their last-minute withdrawal from his case. Greg is in the process of disputing the suggested reasons for their withdrawal and I am hopeful that in due course this will be explained, demonstrating that Mr Franks is not a problematic client as was suggested. Currently Mr Franks is left with no legal representation to address this very important court case which has the potential to be detrimental to his life. Mr Franks relationship with his brother is directly related to his PTSD, which adds to his distress and mental health deterioration. I would like to request that Mr Franks is offered sufficient time to obtain replacement pro-bono legal representation so that his case can be heard with the fairness that he has been seeking. It is not recommended that Mr Franks represents himself as the circumstances surrounding this case are emotionally charged and the outcome of him doing this is highly likely to be detrimental to his well-being. … 1. While I have had regard to these opinions, I must balance them against my own experience that Mr Franks was able to prepare and file cogent evidence and conduct the hearing on 9 June 2023 in what appeared to be a competent and satisfactory manner, in which he had no difficulty at all in explaining his position. 2. I should record that I have not given any effect to the suggestion that Mr Cameron may have been responsible for Mr Franks' psychological condition. 3. The difficulty faced by the Court in deciding this issue has been exacerbated by the following exchange between the Court and Mr Franks on 9 June 2023, at T 3.20: HIS HONOUR: Well, I understand what you have to say about why you were not in Court when the plaintiff's claim was heard. I do need to ask you, what is your position in relation to the continuation of your cross claim if the Court makes order 1? By that question, I mean this, are you content if the Court had a day or two in the near future for your cross claim to be dealt with, or is it your position that any hearing of the cross claim has to be deferred for any reason? If so, what is that reason, and when do you say you would be in a position to have your cross claim determined? APPLICANT: Okay. I'm in a position where I feel I can represent myself. I've got some friends who will help me with the preparation of it. I will continue to look for lawyers in the meantime, but that's not dependent on the matter going forward. The main obstacle at the moment to preparing it myself is obtaining my file. I understand the circumstances regarding me asking you for an order about the file today and I appreciate the advice of how I actually should be going about that. Once I get the file, I expect I can prepare the matter myself and be ready in a few weeks. 1. Since I made the order on 31 March 2023 granting Ms Kinslor leave to file a notice of ceasing to act for Mr Franks, in circumstances where the Registrar had earlier given Mr Franks' counsel leave to return her pro bono brief, Mr Franks' case in all of his communications has been that the hearing fixed for 17 April 2023 should be vacated, so that Mr Franks could recover his file from his previous solicitor, and so that he could obtain new legal representation because his psychological condition, and in particular his PTSD, had the effect that he could not competently conduct a hearing as a litigant in person. Yet, when I put the issue to Mr Franks on 9 June 2023, having formed the impression that he was not as incompetent as he claimed, he readily agreed to conduct the hearing himself, if he could not find new legal representation, provided that he could obtain his file. That proviso was problematic, as Mr Franks had been provided with a properly prepared court book, and, on balance, the evidence suggested that Mr Franks had been given the file by his previous solicitor, and, if the file was in fact incomplete, Mr Franks had not acted positively to obtain the balance of the file. 2. There is no prospect of Mr Franks' cross claim being listed to be heard by me this year, and, for reasons that need not be explained, that means that I would not be the judge who heard the cross claim. If it was listed before some other judge, realistically, the cross claim could not be heard by the Court until some presently unknown time in 2024. 3. In the meantime, the Court must properly weigh the interests of Mr Cameron, who is also unemployed, and who is recovering from a catastrophic car accident that happened on 9 April 2022, in which his wife also suffered serious injury. Since the death of the parties' father on 8 April 2020, Mr Cameron has been prima facie entitled to one third of the beneficial ownership of the Property. As mentioned at [42] of my reasons for judgment published on 28 April 2022 that is set out above, it appears that Mr Cameron may owe legal fees to his solicitors in the family provision application which are a charge on his interest in the Property. 4. When the hearing commenced on 17 April 2023 and there was no appearance by Mr Franks the rule that governed the procedure to be followed by the Court was UCPR r 29.7, which relevantly provides: 29.7 Procedure to be followed if party is absent (1) This rule applies when a trial is called on. (2) If any party is absent, the court— (a) may proceed with the trial generally or so far as concerns any claim for relief in the proceedings, or (b) may adjourn the trial. … (4) If, in relation to any proceedings, the defendant appears, but the plaintiff does not appear, the court may dismiss the proceedings. (5) Subrules (3) and (4) do not limit the court's powers under subrule (2). 1. Mr Cameron was the plaintiff in the proceedings and an appearance was made on his behalf. Because Mr Cameron's claim was for the appointment of trustees for sale under s 66G of the Conveyancing Act, the only impediment to the orders he sought being made by the Court was the possibility that Mr Franks would succeed on his cross claim. Consequently, I made the notation in par 2 of the orders that are set out above at [14]. The real significance of Mr Franks' failure to appear was that he did not prosecute his cross claim. For practical purposes, Mr Franks was in the position of the plaintiff in r 29.7(4). Because of the last minute uncertainty introduced by Mr Franks' indirect message to the Court on the morning of the hearing, I did not feel comfortable in applying r 29.7(4) on a final basis. Accordingly, I only made the notation in par 3 of the orders that Mr Cameron was in principle entitled to an order that Mr Franks' cross claim be dismissed. 2. The question now before the Court is whether the Court should take the unusual step of ordering that the hearing retrospectively be adjourned. That would be justifiable if the evidence now before the Court establishes to an adequate degree of confidence that Mr Franks would have appeared to contest the proceedings on 17 April 2023 were it not for his having suffered a medical episode that reasonably deprived him of the ability to attend court. 3. This raises a difficult forensic issue because it is a matter that must be dealt with in a relatively summary way. The Court conducted a hearing on 9 June 2023, at which counsel for Mr Cameron cross-examined Mr Franks, but otherwise the evidence was confined to written materials. It has been difficult in those circumstances for the Court to make positive findings concerning the conduct of Mr Franks and the real reasons for his non-appearance on 17 April 2023. 4. As I have indicated above, that is why I specified in order 7 made on 28 April 2023 that Mr Franks provide evidence from a medical practitioner who examined him in hospital on 17 April 2023 to substantiate Mr Franks' claim that he was unable to attend court due to attending hospital for a heart condition. Mr Franks has ignored that requirement. Consequently, the documentary evidence that has been provided concerning Mr Franks' capacity to travel to Sydney and appear in court on 17 April 2023 is remote. I have considered that evidence carefully, and I am not satisfied that Mr Franks suffered a cardiac episode on the morning of the hearing that prevented him from travelling to Sydney. I accept that Mr Franks may have been suffering stress and anxiety as a result of the imminent hearing and that he may have experienced feelings of pressure in his chest. However, the evidence does not justify a finding that the effects were other than discomfiting and transitory. 5. The significance of Mr Franks' claim that he was medically incapable of travelling to Sydney must be judged in the light of surrounding circumstances. 6. The Court is not in a position to assess objectively the reasonableness of Mr Franks' plan to be able to catch a plane scheduled to leave Port Macquarie Airport at 7:10 AM in the morning on the basis that it will land at Kingsford Smith Airport in time to allow Mr Franks to travel from the airport to the court in the centre of the city. It is not unreasonable for the Court to consider that plan to be improbable of success and, in any event, it involved an unjustifiable degree of risk. 7. I am not satisfied with Mr Franks' explanation of why the records made by the paramedics and the medical intern that he told them that he awoke at 6:30 AM were incorrect. The Court would ordinarily expect that these professional people would be trained to record such details accurately. Whatever Mr Franks' plan may have been as to how he could have travelled to the airport in time to board the plane, and whether or not his understanding expressed in his evidence that he could board the plane at the last minute notwithstanding the advertised boarding schedule was sound, I am satisfied that the arrangements that Mr Franks made to ensure that he was able to appear were irresponsible having regard to his obligations to the Court. 8. The fact that, on his own admission, Mr Franks called the Ambulance Service one minute after his flight was due to leave demonstrates at the least an exceedingly casual approach to Mr Franks' civic obligation to appear to prosecute his cross claim, if he wanted to avail himself of the opportunity to do so. 9. Substantial doubt must be cast upon the genuineness of Mr Franks' claim that it was his intention to prosecute his cross claim rather than avoid an early judicial determination of the proceedings by the circumstances in which Mr Franks forfeited the opportunity afforded to him by the pro-bono scheme to be represented by counsel and solicitor at the hearing. 10. Finally, having heard Mr Franks, I am satisfied that he was as capable of conducting his case in person as would be the majority of people who were placed by circumstances in that uncomfortable position. I do not ignore the fact that Mr Franks consistently foreshadowed the need to adjourn the hearing indefinitely in order to obtain alternative legal representation and to recover from his medical disabilities, only to readily say to the Court that he was prepared to conduct his case in person. 11. I therefore conclude that the reasons subsequently given by Mr Franks for not appearing to prosecute his cross claim on 17 April 2023 do not demonstrate extenuating circumstances that are sufficient to justify the Court in retrospectively adjourning the hearing, without making the orders referred to in pars 2 and 3 made on that date. 12. Accordingly, the orders of the Court are: 1. Order that the defendant/cross claimant's notice of motion filed on 18 May 2023 be dismissed. 2. Order that the defendant/cross claimant pay the plaintiff/cross-defendant's costs of the notice of motion filed on 18 May 2023. 3. Order pursuant to section 66G of the Conveyancing Act 1919 (NSW) (the Act) that Alan Priest of Priest Legal of [redacted] and Nerryl Doney of Cooney Harvey Doney of [redacted] (the Trustees) be appointed as trustees for the sale of the property described in [redacted] and situated at and known as [redacted] (the Property). 4. Order that the Property shall vest in the Trustees subject to any encumbrance affecting the entirety of the Property but free of any encumbrances affecting any individual share or shares in the land to be held by the Trustees upon the statutory trust for sale under Division 6 of Part 4 of the Act. 5. Order that the Trustees be authorised to: 1. obtain valuations of the Property by retaining a registered valuer; and 2. offer the Property for sale and to sell the same either by way of public auction with the power to fix reserve prices for the Property or, alternatively, to sell the Property by private treaty, including to the plaintiff or defendant, at the best price available. 1. Order that the Defendant deliver up possession of the Property to the Trustees within 28 days of a direction by the Trustees to do so. 2. Order that upon the sale of the Property the Trustees be authorised to hold the proceeds of sale on trust and be empowered to distribute the said net proceeds of the sale as follows: 1. to pay all costs and expenses relating to the execution of the trust, including but not limited to the commission and other expenses of any real estate agent, auctioneer or valuer retained in respect of the sale, and the remuneration and legal and other reasonable expenses of the Trustees in respect of the sale and transferring the Property to the purchaser; 2. to pay any payments and charges including unpaid rates, taxes and any other statutory charges levied in respect of the said land until the time of completion of the sale of the Property; 3. to divide the balance as to one third to the Plaintiff and two thirds to the Defendant. 1. Order that the cross summonses filed on 4 April 2022 and 28 July 2022 be dismissed. 2. Order that the defendant/cross claimant pay the costs of the proceedings of the plaintiff/cross-defendant. ********** 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: 11 August 2023