Bernard Laverty v Poynten [2000] NSWSC 1018

New South Wales Supreme Court

CITATION : Bernard Laverty v Poynten [2000] NSWSC 1018 CURRENT JURISDICTION: Equity Division Commercial List FILE NUMBER(S) : SC 50260/95 HEARING DATE(S) : 30/10/00 JUDGMENT DATE : 30 October 2000

PARTIES : Bernard Laverty Pty Limited - Plaintiff John Goldsworthy Poynten - First Defendant JUDGMENT OF : Rolfe J

COUNSEL : Mr N.A. Cotman SC - Plaintiff First defendant in person SOLICITORS : Garrett Walmsley Madgwick - Plaintiff CATCHWORDS : Application for adjournment - Final orders by consent. DECISION : Judgment for the plaintiff against the first defendant with costs.

THE SUPREME COURT REVISED OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

ROLFE J

MONDAY 30 OCTOBER 2000 50140/97 - GORDON McNICHOL FINLAY v NATIONAL AUSTRALIA BANK LIMITED AND OTHERS 50260/95 - BERNARD LAVERTY PTY LTD V JOHN GOLDSWORTHY POYNTEN AND OTHERS JUDGMENT - On application by Mr Poynten for an adjournment. See p10 of transcript. Final orders - see p15 of transcript.

1 HIS HONOUR: 2 These proceedings between Bernard Laverty Pty Limited, as plaintiff, and Mr John Goldsworthy Poynten as first defendant, were set down for hearing originally on 5 October 1999. Subsequently, they were set down for hearing on 10 October 2000 after a substantial portion involving The National Australia Bank Limited had been settled. On that date an application was made for an adjournment on behalf of Mr Poynten, on the basis of his illness, which I granted for reasons I then gave, and I stood the matter over until 16 October 2000, by which date it was then anticipated that Mr Poynten would be well enough to travel to Sydney. 3 A further application, however, was made on 16 October 2000 for an adjournment, because of certain complications which had followed Mr Poynten's operation, and I once again granted an adjournment until today. 4 On Friday there was delivered to my Associate a lengthy affidavit of Mr Poynten sworn on 24 October 2000, in which he essentially sought an adjournment until after two sets of criminal proceedings were resolved. The two sets of criminal proceedings are against a Mr Damian Parkes and against the fourth defendant, Mr James Gordon Kearns. 5 So far as Mr Parkes is concerned, he has been committed for trial and is to stand trial on 13 November 2000 in the District Court. In any event, that is the date which has been fixed for the hearing and I assume, subject to the availability of a Judge, that the matter will commence on that day. On the other hand, there is no absolute certainty about that nor that the first trial will necessarily run its ordinary course and lead to either an acquittal or conviction. 6 So far as the proceedings against Mr Kearns are concerned, I am informed that committal proceedings have been set down to commence on Thursday 7 December 2000, with an estimate of 21 days. It seems to me unlikely that that will be 21 consecutive sitting days for fairly obvious reasons and, therefore, it is unlikely, in the extreme, that the committal proceedings will conclude, assuming that they are defended and I have no reason not to make that assumption, until early 2001. The result of the committal proceedings will be either that Mr Kearns is required to stand his trial or not required to stand his trial. In the former event the matter will then have to be fixed for hearing, presumably once again in the District Court, and I am unaware within what period the matters are listed for hearing, but assuming this to be a somewhat complicated corporate fraud case as alleged by the prosecution, it is likely to take some little time before a Judge and jury. 7 The reason Mr Poynten places so much emphasis on these proceedings is that he submits they arise out of alleged fraudulent transactions by Mr Parkes and Mr Kearns in relation to Nambucca Investments Pty Ltd (In Liquidation). He agrees, I think, that at all material times he was a director of that company, but he wishes to submit two things: Firstly, that insofar as the case against him is brought on the ground of negligence, he could not, even as a director, have been negligent if others, unknown to him, were defrauding the company; and, secondly, that it may be necessary for him to obtain documents, which at the moment are not otherwise available because of the criminal proceedings in defence of these proceedings. On those bases Mr Poynten seeks the adjournment. 8 I am satisfied that Mr Poynten is fully aware of the nature of the claim brought against him by Bernard Laverty Pty Limited. Mr Poynten was formerly a solicitor. He has stated, and this has been recorded, that he understands the allegations brought against him. He has filed a defence to those allegations, and his statements of evidence. In essence, he puts in issue two critical matters, which are alleged against him at an evidentiary level, namely, that he did not have a general retainer to act for the plaintiff nor for its directors and shareholders. He certainly acted from time to time as their solicitor, but he did not have, as is alleged on behalf of the plaintiff, any form of general retainer. Secondly, he puts in issue that he advised the plaintiff to invest, although he has said today that he concedes that when asked by Mr and/or Mrs Laverty about how Nambucca Investments was proceeding, he told them it was proceeding, at least to his knowledge, well. 9 It seems to me in these circumstances that it is necessary to look, firstly, at the basic allegations which are made by the plaintiff against Mr Poynten. In doing that I will, of course, require evidence to be called on behalf of the plaintiff and if Mr Poynten wishes to avail himself of the opportunity to do so, he will, of course, be allowed to cross-examine any witness who is called and to present any evidence himself in furtherance of his defence. 10 As the matter proceeds, it seems to me that I will be in a far better position to consider whether there is any point in granting the adjournment, that is, whether any matter emerges from the evidence presented to me which would make it desirable for Mr Poynten to have access to other material. In saying that, however, I would think that that material would be mainly documentary and I would allow that to be subpoenaed at short notice from the Australian Securities and Investments Commission. It does not, as matters presently stand, seem to me to matter whether, at the end of the day, Mr Parkes and/or Mr Kearns are found guilty of misappropriation, although that is only a prima facie view, and it may be one about which Mr Poynten can satisfy me in due course, namely, that it is a relevant matter. If he can, then I will consider how the litigation should proceed. 11 Mr Poynten has said, however, that he is not desirous of holding up these proceedings if I am of the opinion that an adjournment should not be granted and that he would consent to judgment. That is a matter upon which I will allow him to reflect a little more in a moment, but it seems to me that the first thing I have to decide is whether - and Mr Cotman who appears for the plaintiff opposes this course - I should grant an adjournment without more. I am not prepared to do that. That being so, either Mr Poynten will consent to judgment or I will commence the hearing and either conclude it, if I am not satisfied that an adjournment is necessary until after the criminal proceedings, or alternatively, I will entertain a further application for an adjournment in the light of the material which is adduced before me. 12 However, I am not prepared to allow today to pass without embarking upon the case, at least as far as possible. But I make it clear that 'as far as possible' may well be to judgment. Therefore, Mr Poynten must decide, in the light of my refusal to grant an adjournment at this point, what he wants to do. There has been a full discussion between Mr Poynten and myself as to his position and I have given the somewhat detailed reasons for indicating my approach to the matter. Unless, Mr Poynten requires no further time, I would propose to allow him ten minutes to consider the situation and then proceed with the hearing or take what other course may result from his consideration of the matter. 13 LATER: 14 I order that there be judgment for the plaintiff against the first defendant in the sum of $1,312,895.50, inclusive of interest to to-day's date. I order the first defendant to pay the plaintiff's costs of the proceedings against him. ____________