DEMOVICH v BUILDING SERVICES CORPORATION [1998] NSWCA 69

DEMOVICH v BUILDING SERVICES CORPORATION SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, MEAGHER JA and FITZGERALD AJA 8 October 1998, 8 October 1998

[1998] NSWCA 69

Meagher JA This is an appeal by Mr Demovich against a verdict and judgment given by his Honour Judge Wall in proceedings in the District Court on 31 January 1996, 1 February 1996 and 2 February 1996 in which his Honour gave a verdict and judgment in favour of the plaintiff in that case, Building Services Corporation, the respondent in the present case. Although initially the case started with eight grounds of appeal, only two of them have been pursued.

The first ground of appeal is that his Honour erred in refusing the appellant's application, which was Mr Demovich's application, to have the hearing adjourned. The case had a slightly chequered history. An application was made by Mr Demovich on 8 November 1995, or thereabouts, to have the case adjourned when it was listed for hearing on that day. The grounds of that application seem to have been the default of the plaintiff in the late supply of a Scott schedule, however the application was made and was acceeded to.

The next date, mentioned here as being 13 January 1996, when the present appellant, represented by counsel and solicitors, moved on a notice of motion to vacate the hearing on the following day, 31 January 1996. That motion was heard by his Honour, Judge Wall, and dismissed.

The case came on for hearing then on 1 November and on the first day proceeded with the appellant conducting his own case. On the second day of the hearing the appellant applied for adjournment and that adjournment was refused. It is the refusal of that adjournment which constitutes the first ground of this appeal.

Mr Desiatnic, after drawing our attention to the relevant cases, points out that, as far as one can see, when the case commenced Mr Demovich expected to have legal representation and informed the Court of that. His command of English was inadequate. He was not totally familiar with the law and legal procedures. He had difficulty in getting the judge and the witnesses to understand him and he was not wholly familiar with the key elements of the case against him.