Supreme Court New South Wales Medium Neutral Citation: Mastronardo v Mastronardo [2024] NSWSC 63 Hearing dates: 9 January 2024 Date of orders: 9 January 2024 Decision date: 09 January 2024 Jurisdiction: Common Law Before: Campbell J Decision: See [17] Catchwords: CIVIL PROCEDURE – non-compliance with court order to file amended summons for final relief – whether non-compliance renders proceedings defective – judicial conflict of interest – adjournment warranted Legislation Cited: Civil Procedure Act 2005 (NSW) Real Property Act 1900 (NSW) Category: Procedural rulings Parties: Carmelo Mastronardo (Plaintiff) Maria Mastronardo (First Defendant) Antonio Mastronardo (Second Defendant) Representation: Counsel: C. Mastronardo (Plaintiff in person) D. Nagle (First and Second Defendant) Solicitors: Clear Lawyers (First and Second Defendants) File Number(s): 2024/5313 ex tempore JUDGMENT 1. By summons filed in court on 5 January 2024 before Slattery J, who was then the Equity Division vacation judge, the plaintiff sought an order extending caveat number AT667648 by which he purports to assert an interest in land at Abbotsford until further order. That was the only relief sought in the summons. 2. Slattery J made orders for short service of the material relied upon by the plaintiff, who is currently self-represented, listing the matter for hearing before the Equity judge today, and directing the plaintiff to file an amended summons praying for principal relief in the proceedings. 3. The form of that last order made by Slattery J is in these terms, for clarity: "Direct the plaintiff to provide to the Court at the hearing on 9 January 2024 an amended summons making a claim for final relief in the proceedings." 1. That order has not been complied with. Mr Nagle of counsel, who appears for the first and second defendants points out, I interpolate, that the proceedings for that reason alone are defective, particularly so in circumstances where (1)Slattery J contemplated that they would proceed to final hearing today; and (2) the celerity with which the Equity Division deals with caveat matters. 2. The matter hit a snag when it transpired that the vacation judge in the Equity Division this week is my colleague, Peden J. Peden J acted for the second defendant in her previous life at the bar and given the comparative recency of her appointment is clearly in a position of conflict. So much was accepted by both Mr Mastronardo, the plaintiff, and by Mr Nagle on behalf of the first and second defendants. 3. The plaintiff served the summons and supporting affidavit in accordance with Slattery J's directions on Saturday. The solicitor for the first and second defendants is overseas, but he was able from that remote location to brief Mr Nagle yesterday who spent some time preparing the matter for today. I further interpolate that the plaintiff's preferred solicitor is apparently also overseas. Given what Mr Nagle knew about the previous professional relationship between Peden J and the second defendant and because conventionally only one judge in each trial division sits during the long vacation, he contemplated the necessity for the matter to be adjourned until next week when a different Equity judge will be sitting. As it transpired, Peden J being aware of the conflict, spoke to me this morning before court and asked whether I could deal with the matter given that she expected that she would need to recuse herself in the interests of the appearance of justice being done. I, of course, agreed to accept the referral. However, I must say I understood that I would be dealing with the matter on a "directions" basis, as the parties could not agree on the length of the adjournment appropriate, rather than on a final hearing basis. As unexpectedly another judge was available, Mr Nagle prepared some written submissions dealing with the matter, as it were, on its merits, as the evidence of the plaintiff presently stands and in accordance with the established law. Those written submissions seek an order dismissing the summons: a) on the ground that it is defective because no final relief is sought; and, b) more significantly, on the basis that neither the caveat itself nor the evidence contained in the affidavit discloses a caveatable interest, as that expression is understood in the case law interpreting the relevant provisions of the Real Property Act 1900 (NSW). Mr Nagle pressed for me to determine the matter. 4. As it transpired, Mr Nagle, pursuant to leave he had previously sought, appeared by telephone this morning and the plaintiff appeared in person. Following her discussion with me, Peden J listed the matter at 2 o'clock as I had other prior hearings to deal with in the Common Law List. Mr Nagle was able to attend in person at 2 o'clock, as he told Peden J he would. Although he was not excused Mr Mastronardo, for reasons I did not quite understand despite his attempt to explain it, decided to take himself home to Kenthurst and he has appeared by telephone this afternoon. I have expressed my views about that, and I will not repeat them here. 5. In any event, as happens in litigation, there has been a very significant shifting of the ground. The short adjournment to 2 o'clock gave the defendants the opportunity to put themselves in a position to proceed but the plaintiff found himself not in that position and he informed me, perhaps not unreasonably, that given the indications he had received last night of the need for the matter to be adjourned, largely because of Peden J's position, he had no expectation the matter would proceed to finality today. 6. In view of this, the plaintiff has applied for an adjournment. As I have said, there had been a discussion about an adjournment this morning, but the parties could not agree on how long was reasonable or appropriate in the circumstances of the case. In default of earlier of agreement, the defendants' position has changed, as is want to happen in litigation. 7. In any event, I repeat, the plaintiff, applied for an adjournment and although I found his explanation for not complying with Slattery J's direction to file an amended summons not very satisfactory, given the shifting ground in the case and allowing some weight, but not much, to the consideration he is self-represented, I am persuaded that I should grant him an adjournment. In coming to that conclusion I have borne in mind that the sale of the subject real property which prompted the lodging of the caveat is not to take place until 29 January 2024 and in the way of things, perhaps more than usual, there is a little time for the matter to be dealt with before then to avoid prejudice not only to the parties but also, very importantly, to the purchaser and perhaps any incoming mortgagee. 8. Although the adjournment application was strenuously opposed by Mr Nagle, for the reasons I have rehearsed, I thought it an appropriate exercise of my discretion bearing in mind the restraints imposed on that discretion by the efficiency provisions of the Civil Procedure Act 2005 (NSW). It was apparent during the course of the hearing before me this afternoon that Mr Mastronardo has advanced various grounds for his asserted entitlement, which are not entirely consistent with either the description in the caveat drawn by a licensed conveyancer or perhaps in his affidavit. Certainly, what he said to me this afternoon is not all replicated in the affidavit. 9. It also seemed to me that he has expressed a desire to obtain legal advice, although it is unlikely that it will be from his preferred solicitor, given the urgency with which the matter will need to be made ready for hearing. 10. In a decision which I suppose satisfies neither party, I propose to list the matter for hearing before the Equity judge next Thursday, 18 January 2024 and I will make directions which I have discussed with the parties for the exchange of further evidence. 11. Mr Nagle also pointed out there has been no undertaking as to damages and has referred to the ever-increasing costs of defending the proceedings, both of which are legitimate submissions. He also, from the bar table, bona fide, expressed some matters concerning the plaintiff's financial position which may be pertinent to both of those questions. 12. The plaintiff has declined to respond to those submissions, and I did not compel him to do so. In any event, given that it is my expectation that the matter will be dealt with next week and that the conveyancing settlement is not until the 29, there is no real prospect of any actual loss being sustained by either of the defendants or the purchaser or any incoming mortgagee. The situation may change next week, depending on the view of the judge who hears the case on its merits, but at the moment I will not require an undertaking to be given as to damages for the reasons I have expressed. 13. Finally, it is also very difficult for me to deal with what is effectively an application for security for costs in the absence of hard evidence about the plaintiff's financial position. This is especially so bearing in mind the great difficulty a defendant experiences in obtaining an order for security for costs as against an individual, as opposed to a corporation, residing within jurisdiction, even where the individual may be indigent. I have no doubt, however, that the first and second defendants, given the non-compliance with Slattery J's orders are entitled to have the benefit of their costs as part of their costs in the cause. 14. The orders I make are as follows: 1. Adjourn the matter for final hearing before the Equity vacation judge on Thursday 18 January 2024 at 10am. 2. Direct that all parties and their legal representatives are to appear at court in person for the hearing, unless for good reason excused. 3. Direct the plaintiff to file the amended summons contemplated by Justice Slattery's orders by 4pm on Friday 12, January 2024. 4. Any proposed additional affidavits to be relied upon by the plaintiff must be filed and served by 4pm on Friday 12, January 2024, subject of course to proper objection raised to the admissibility that material by the first and second defendants. 5. The plaintiff is to file the written submissions upon which he relies by 4pm on Friday 12, January 2024. 6. The first and second defendants are to file any evidence by way of affidavit upon which they rely by 4pm on 16, January 2024, together with any amended submissions. 7. The first and second defendants' costs of and incidental to today's proceedings are their costs in the cause. 8. Caveat AT667648 is extended to 5pm on 18, January 2024. 9. All stipulations as to time in these orders are of the essence. ********** 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: 06 February 2024