Idoport Pty Limited & Anor v National Australia Bank Limited and 8 Ors; Idoport Pty Limited & Market Holdings Pty Limited v Donald Robert Argus; Idoport Pty Limited "JMG" v National Australia Bank Limited & Ors [51] [2001] NSWSC 1081

New South Wales Supreme Court

CITATION : Idoport Pty Limited & Anor v National Australia Bank Limited and 8 Ors; Idoport Pty Limited & Market Holdings Pty Limited v Donald Robert Argus; Idoport Pty Limited "JMG" v National Australia Bank Limited & Ors [51] [2001] NSWSC 1081 FILE NUMBER(S) : SC 50113/98; 50026/99; 3991/00 HEARING DATE(S) : 26/11/01 JUDGMENT DATE : 26 November 2001

Idoport Pty Limited (Plaintiff) PARTIES : National Australia Bank Limited (Defendant) Donald Robert Argus (Defendant) JUDGMENT OF : Einstein J

COUNSEL : Mr JJ Garnsey QC, Mr M Dicker, Mr R Titterton, Mr R Alkadamani (Plaintiff) Mr T Bathurst QC, Mr J Sackar QC, Dr A S Bell, Mr J Halley (Defendants) SOLICITORS : Withnell Hetherington (Plaintiff) Freehills (Defendants) CATCHWORDS : Practice and procedure - Discretion to adjourn proceedings - Principles - Adjournment of final hearing for a period leading to substantial case management difficulties - Final hearing already having continued for 18 months - Failure to comply with orders to provide security for costs - Application for dismissal of proceedings following automatic stay of proceedings operative when security for costs not provided - Case management - Circumstances in which a party may be shut out from litigating an arguable case - Administration of justice requiring that a much less affluent litigant seeking to enforce alleged rights against a much wealthier party should be afforded a reasonable opportunity to secure funds to enable the continued enforcement of those claimed rights - Application to vary or stay or vacate interlocutory orders of a substantive nature made after a contested hearing requires applicant to show a material change of circumstances LEGISLATION CITED : Supreme Court Rules 1970 (NSW) ABB v Freight Rail [1999] NSWSC 1037 Ahern v Deputy Commissioner of Taxation (Qld) (1987) 76 ALR 137 Amalgamated Television Services Pty Ltd v Marsden [1999] NSWCA 313 Apex Pallet Hire Pty Ltd v Brambles Holdings Ltd SC (Vic), Full Court, 8 April 1998, unreported, BC8800750 Biro v Lloyd [1964 - 1965] 2 NSWR 1059 Brimaud v Honeysett Instant Print Pty Ltd (unreported, Supreme Court of NSW, 19 September 1988, McLelland J) Central Sydney Area Health Service v Cooper [2001] NSWCA 329 Darling Harbourside (Sydney) Pty Ltd v Sanirise Pty Ltd (unreported) Full Federal Court, 17 May 1996 Dawson v Deputy Commissioner of Taxation (1984) 71 FLR 364 Dick v Pillar [1943] 1 KB 497 Evans v Bartlam [1937] AC 473 GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710 Hinckley & South Leicestershire Permanent Benefit Building Society v Freeman [1941] Ch 32 Ketteman v Hansel Properties Ltd [1987] AC 189 Maronis Holdings Ltd v Nippon Credit Australia Ltd [2000] NSWSC 397 Maxwell v Keun [1928] 1 KB 645 McColl v Lehmanm [1987] VR 503 Myers v Myers [1969] WAR 19 CASES CITED : Ord v Ord [1923] 2 KB 432 Oshlack v Richmond River Council, (1998) 193 CLR 72 Parras Holdings Pty Ltd v Commonwealth Bank of Australia (unreported, Federal Court, 14 October 1998) Queensland v JL Holdings 189 CLR 146 Ringen Pty Ltd v BNY Australian Ltd (Supreme Court of NSW, unreported, 19 May 1994) R v Cox [1960] VR 665 R v Thames Magistrates' Court, ex parte Polemis [1974] 2 All ER 1219 Sali v SPC (1993) 116 ALR 625 Scott v Handley (1999) 58 ALD 373 Sealby v Obelisk Securities Pty Ltd [1999] NSWCA 368 Searle v Keayes 21/11/1994, Fed Ct (NSW) NG309/94 Squire v Rogers (1979) 39 FLR 106 Sullivan v Harris (1901) 3 WALR 86 Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246 Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Limited [2001] FCA 1603 Unilever Aust Ltd v Karounos [2001] FCA 162 Walker v Walker [1967] 1 WLR 327 Wannal Pty Ltd v Jericho Nominees Pty Ltd (1985) 2 SR(WA) 297 Watson v Watson (1968) 12 FLR 164 DECISION : Short moments of order to be brought in to provide for the giving of directions as contemplated by the reasons for judgment, namely being; (1) that insofar as orders and directions currently in place require the defendants to carry out procedural steps of and related to the final hearing, the order and directions be stayed until midnight on 1 December 2001; (2) that the main proceedings be re-listed for directions on the first day of the new term at noon; (3) that the defendants' application for orders dismissing the MLC proceedings be stood over for hearing on the first day of the new term at noon or on such later occasion as the circumstances which obtain on that day may dictate; (4) that each party be given general leave to make returnable on the first day of the new term at noon, such further or other motions as they seek to have heard in determining the fate of the proceedings; (5) the defendants have leave to make returnable on the first day of the new term at noon, any notice of motion seeking to dismiss the main proceedings for failure to prosecute and/or for any failure to provide security for costs; (6) the plaintiff has leave to make returnable on the same day at the same time, any notice of motion seeking to have the stay orders listed; (7) such notices of motion together with affidavits in support are to be filed and served on or before 21 January 2002; (8) affidavits in answer are to be filed and served on or before 24 January 2002; (9) submissions should be exchanged and furnished to my associate by 5pm on 25 January 2001; (10) Costs of and occasioned in relation to the motions presently before the Court are appropriately to be reserved for determination on the first day of the new term at noon or on such later occasion as the circumstances which obtain on that day may dictate.