Fischer v H & H Mikhail Pty Limited [2000] NSWSC 567

New South Wales Supreme Court

CITATION : Fischer v H & H Mikhail Pty Limited [2000] NSWSC 567 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 10069/00 HEARING DATE(S) : Tuesday 13 June 2000 JUDGMENT DATE : 13 June 2000

PARTIES : Josef Fischer v H & H Mikhail Pty Limited JUDGMENT OF : Michael Grove J at 1

LOWER COURT Local Court JURISDICTION : LOWER COURT 245/99 FILE NUMBER(S) : LOWER COURT B.J.Kennedy, Esq, LCM JUDICIAL OFFICER :

COUNSEL : SOLICITORS : P.M.E. Robinson (Plaintiff) K. Tapsell (Defendant) CATCHWORDS : Local Court - Civil Jurisdiction - Lease - Guarantor - No Special Point of Principle DECISION : Adjournment Refused. Summons Dismissed.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MICHAEL GROVE J

Tuesday 13 June 2000

10069/00 - JOSEF FISCHER v H & H MIKHAIL PTY LIMITED

JUDGMENT (On Application for Adjournment)

1 HIS HONOUR : This matter arises out of a hearing before a magistrate in the local court in which the plaintiff in this Court, Mr Josef Fischer, and a company described as Kindy College of Australia Pty Limited, was sued in a civil action by the present defendant, H & H Mikhail Pty Limited. On 30 November 1999 the magistrate entered judgment in favour of the present defendant for $40,000 plus interest and costs. 2 On 11 January 2000 Mr Fischer, as a litigant in person, filed a summons seeking relief against the judgment entered by the magistrate. The company, Kindy College of Australia Pty Limited, is not joined in the proceedings in this Court. The summons filed by Mr Fischer was returnable on 21 February this year. He did not appear and the matter was struck out. 3 On 6 March the matter was relisted and the hearing adjourned to 20 March by Hidden J, indicating that argument would be heard in full on the scheduled date. On that date Mr Fischer appeared in person and asked for further adjournment, which was consented to by the defendant upon conditions, including conditions that certain affidavits be filed and written submissions by 10 April. The matter was then adjourned to 17 April. 4 On 10 April the defendant filed written submissions. The plaintiff has not yet done so. When the matter was listed on 17 April the plaintiff requested further adjournment and again this was consented to, upon condition that certain costs would be paid and that the plaintiff's written submissions would be filed by 1 May. 5 On 5 May I am informed that Mr Fischer wrote to the defendant or its representatives, indicating that he was ill and could not attend. Correspondence emanated from Ms Robinson, the solicitor who had acted for Mr Fischer and the corporation in the hearing before the local court. 6 On 9 May Ms Robinson filed a notice of her appearance in this Court as solicitor for the plaintiff. The only further matter that has occurred is that, the further hearing being scheduled for today, a facsimile transmission was sent to the registrar, signed by Mr Fischer, indicating that he was ill with heart problems and was having further tests with a specialist at the St Vincent's Hospital Professorial Unit on Thursday, 29 June next. The matter has been listed for hearing today, 13 June. 7 Mr Fischer also enclosed a copy of a letter from Dr Savage, a general practitioner in Dapto. The content of his letter, omitting formal parts, is as follows: "Mr Fischer presented at the surgery this morning with trans-thoracic chest pain. Mr Fischer has a previous cardiac history for which he has seen Professor O'Rourke. In view of his symptoms, despite a lack of findings, I have suggested that he be reviewed by the Professor.