New South Wales Supreme Court CITATION : Central West Equipment v Gardem Investments & ors [2002] NSWSC 607 FILE NUMBER(S) : SC 20372/98 HEARING DATE(S) : 28/5/02 JUDGMENT DATE : 28 May 2002 PARTIES : Central West Equipment Gardem Investments & ors JUDGMENT OF : O'Keefe J at 1 COUNSEL : Plaintiff - Ms S Lovett Defendant - Mr G Gardem (in person) SOLICITORS : Plaintiff - Wilson, Fardell & Moore - Solicitors Defendant - Gibson Owen Lawyer Inc - Solicitors CATCHWORDS : Change of venue - Venue previously changed by consent - Delay not satisfactorily explained - Stay - Unpaid costs of another action - Trifling amount - Consent injunction - Liberty to apply - No change of circumstances - Damages sought for a person who is not a party to action. DECISION : 1. Notice of Motion dismissed; 2. The third defendant is to pay the costs of the Motion; 3. Assessment of costs of the Motion to be deferred until the conclusion of the principal proceedings. - 6 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION O'KEEFE J TUESDAY, 28 MAY 2002 20372/98 – CENTRAL WEST EQUIPMENT v GARDEM INVESTMENTS & ORS JUDGMENT 1 HIS HONOUR: By Notice of Motion filed 26 March 2002 Graham Gardem (the third defendant) seeks essentially three orders: 1. A change of venue for the hearing of the matter from Sydney to Lismore. 2. A stay of the proceedings based on several grounds. 3. An order dissolving an injunction made by consent on 24 December, 1996 as a result of which an amount of $5,321 is held in the court presumably to abide the outcome of the proceedings in which the Motion has been filed. 2 The principal proceedings were commenced by Central West Equipment Hire Pty. Ltd. (the plaintiff) by Statement of Claim filed on 29 May, 1996. The cause of action relied on is breach of a contract alleged to have been entered into on 8 May 1995 and involving the sale of a plant hire business located at 13-15 Peisley Street Orange. The sale is said to have included certain plant, fittings and chattels. 3 The plaintiff's allegation is that the defendants in the action failed to deliver the plant and equipment the subject of the agreement and despite requests for the return of such equipment they have continued in their failure to do so. The value of the items involved is nominated in the Statement of Claim as $40,611.30. 4 A further claim is made against the defendants, namely, that they, or some of them, misrepresented the takings of the business and breached a promise which was said to be included in the agreement to the effect that the business would achieve sales of at least $300,000 per annum. As a consequence of such breach the plaintiff claims to have sustained substantial damage. 5 The action has a long history. It is a history in which the defendants have, from time to time, employed different solicitors and have either terminated their services or the solicitors themselves have terminated their services. The action has been differentially case-managed. 6 The case has apparently been ready for hearing since 17 May 2001. It is listed for hearing in Sydney on 8 July 2002. As already indicated, the contract the subject of the litigation was made and is alleged to have been breached in Orange, New South Wales. However, on 28 August 1998, at the request of the defendants and with the consent of the plaintiff, the action was transferred to Sydney from the venue named in the Statement of Claim, namely Orange. At the time of the consent there was no suggestion that the venue of Sydney was inappropriate or that any venue other than Orange or Sydney would be appropriate. 7 On 9 March 2001 the parties attended a compliance conference and on that date orders were made that: "(i) The plaintiff file and serve affidavit evidence in the action on or before 23 March 2001 (ii) That the plaintiff file and serve an Accountant's report, being that of an investigating Accountant on or before 4 April 2001; (ii) The defendants file and serve all affidavit evidence intended to be relied upon in the action on or before 14 June 2001." 8 As emerges from the evidence filed in the matter the defendants have failed to comply with the order that they file and serve affidavit evidence in the action; that failure to comply continues to the present time. 9 According to the evidence, the action has been ready to proceed to hearing since 17 May 2001. On 20 September 2001 it was listed for directions in an endeavour to overcome the default of the defendants in complying with the order to which I have already referred. At that time they had solicitors acting for them but a Notice of Ceasing to Act was filed by such solicitors and since that time the defendants have been representing themselves, or at least the third defendant has been acting on his own behalf and on behalf of the other two defendants, who are incorporated alter egos of the third defendant. 10 On 23 October 2001 the matter was again listed for directions. This was done by telephone link. At that time the third defendant raised the possibility of seeking a transfer of the venue to Lismore. Objection was raised on behalf of the plaintiff and the court ordered that: "(a) The defendants file any Notice of Motion to transfer the matter to Lismore by 13 November2001; (b) The defendants produce copies of financial statements and notices of assessment for 30 June1997 to the date of the order not later than13 November 2001; (c) The matter be listed for final conference on 29 November 2001." 11 On 29 November 2001 at the final conference the third defendant appeared on his own behalf and by leave also appeared on behalf of each of the other defendants. He indicated to the court that he was ready to proceed to a hearing with the exception of receipt of his previous solicitor's file and with the application to transfer the matter to Lismore which was to have been filed by 13 November 2001. 12 As indicated at the beginning of this judgment, the Notice of Motion to change the venue again was not in fact filed until 26 March 2002. The third defendant claims that this was due to a series of mishaps on his part as an unrepresented person. A perusal of the file reveals that there is some support for that suggestion but that there is by no means an explanation to be found for the delay of four and a half months between the date on which the Court ordered the Notice of Motion was to be filed and the date on which it was filed. 13 On 8 February 2002 the matter was listed before the List Judge, Whealy J. The court was informed that no evidence had been filed on behalf of any of the defendants and although the third defendant informed the court that he was in receipt of the file from his previous solicitor and that he wished to make an application to transfer the matter to Lismore, nothing was done in that regard. 14 A further order was made that all evidence in support of any application to transfer the matter to Lismore should be filed by 15 February 2002. This was not done and the Motion was, as I have indicated, not filed until 23 March 2002. 15 There is, thus, in my view delay which is not satisfactorily explained on the part of the defendants. 16 There is evidence before the court that the principal witness for the plaintiff lives on the central coast and that the investigating accountant, who will be an essential and perhaps lengthy witness in the plaintiff's case, has his headquarters at Parramatta. 17 There is further evidence to indicate that the cost of transportation to Lismore would be quite high for the plaintiff for a number of reasons; first, its initial solicitors (who remain on the record for the plaintiff) reside in and conduct their practice from Orange and in order for them to go to Lismore they would have to come to Sydney and then transit through Sydney to Lismore; accommodation costs in Lismore are only marginally less than accommodation costs in Sydney, but the airfares to Lismore and return would not be inconsiderable. Secondly, the cost of the expert accountant attending in Lismore would undoubtedly be significantly increased should the action be heard there, compared with the cost that would be incurred were the action to be heard in Sydney as had been agreed as long ago as 1998. 18 The grounds on which the third defendant seeks the change of venue are two in number: first, he has a bad back. This, he says, is likely to cause him to have to go to hospital and seek hospital treatment in the event that he is stressed by the action. It seems to me that he will be equally stressed whether the action is heard in Sydney or Lismore and that the prospects of his having to attend hospitals for his back would not be increased in any appreciable way were it to be heard in Sydney. 19 My view in this regard is supported by the fact that the third defendant has not had to go to hospital for his back since 1995 or 1996, notwithstanding the pendency of the present proceedings and the numerous applications and appearances before the court, all of which no doubt were, within the terms of reference of the third defendant, "stressful matters". 20 The next ground is that he was a low income earner, that is that he earns only $114 per week. It is not clear whether that was the situation when he agreed to the change of venue in 1998, nor is it clear that the situation now is, in financial terms, any different from the situation in which he was placed at the time when the date for hearing was fixed, namely 15 March 2002. 21 I am not satisfied that the reasons advanced by the third defendant in support of his application for change of venue are of substance sufficient to cause the court to interfere with the situation which presently pertains; namely, that the parties having agreed to a hearing in Sydney and there is an imminent hearing date. To do so would cause serious prejudice to the plaintiff; it would do so not only in terms of costs and inconvenience but also in terms of delay since the Lismore sittings, into which the case would be fitted, would not be until mid 2003. 22 For these reasons I am of the opinion that the application for change of venue should be dismissed and I dismiss that application. 23 The application for stays which have been made by the third defendant are, in my view, quite misconceived. Indeed, in the course of his address to the court he said "I am not really after a stay". However, I must deal with the Notice of Motion in the terms in which it has been filed. The first basis on which the stay is sought is that there remains unpaid an amount of $845 in respect of a District Court action by the plaintiff involving the same subject matter but which was discontinued because at the time of the discontinuance the jurisdictional limit of that count was only $250,000; an amount said to be inadequate to cover the claim by the plaintiff. 24 There has been correspondence between the parties concerning the amount. It does not seem to me to be other than a trifling matter and certainly not a matter which would be a basis for a stay of proceedings. The first that had been heard of any stay of proceedings on that basis is the Notice of Motion. It comes late in the day, is insubstantial and, in my view, not an adequate basis on which to grant a stay. 25 The second basis on which a stay is sought is twofold in nature, namely that there are documents which should have been discovered which have not been discovered and some that have been discovered are not true and clear in the way in which they have been copied or discovered. That matter comes very late in the day, particularly having regard to the fact that the defendants (in concert with the plaintiffs) agreed that the matter was ready to be set down for hearing and accepted a hearing date. I must say, viewing that application, I regard it as almost verging on the ludicrous at this stage. Indeed, I am inclined to the view that it is in the nature of a time-gainer or delaying tactic. I don't think there is any substance in it and I do not propose to grant a stay on these bases or either of them. 26 The next basis for a stay is that the action should not proceed "pending an investigation into the transfer of documents from Cummins Hendricks, Solicitors of Wagga Wagga, New South Wales, to Wilson Fardell & Moore, Solicitors for the plaintiff" in the matter. When questioned about this the third defendant indicated that Cummins Hendricks had acted for a defendant in a common law action for damages which the plaintiff had instituted in this court. That action was settled and the plaintiff in that action (third defendant) received an amount of some $80,000 after costs and other disbursements. His claim is that the solicitors for the defendants in that action gave certain of the documents which they had for the purposes of the action to the solicitors for the plaintiff in the present matter and that as a consequence there was or must have been, apparently, some conspiracy or like between them to injure him. What that has to do with the present action I fail to understand. It is not a proper basis on which to stay and I decline to do so on that basis claimed. 27 The next application is concerned with the dissolution of an order by way of injunction made on 24 December 1996 pursuant to which an amount of $5,321 is held in court. The history of the matter is that on 19 December 1996 the plaintiff sought an ex parte injunction from the court to restrain the dispersal of certain funds being the proceeds of an auction sale which had been organised by the third defendant. The ex parte order was made and an amount of $39,116 was made the subject of restraint. There were apparently negotiations between the parties between the date on which the ex parte injunction was granted and 24 December 1996, as a result of which the terms of the original injunction were varied by consent so that amounts, other than an amount of $5,321, were released to the third defendant and it would seem, his wife. The third defendant now claims that the amount of $5,321 ought to be released to him on the basis that the injunction was obtained on "invalid information" and that "part of the money was not money of a party to the action", namely, it was money belonging to his wife. None of these matters was raised at the time of the consent order by which the injunction in its final form was granted. True it is there was liberty to apply but in my view it has not been established that there has been any change of circumstances that would justify the court in interfering with the order made by consent. 28 In my view the relief claimed for the dissolution of the injunction made by consent on 24 December 1996 should be refused. 29 One further matter has been raised which was somewhat obscure and does not fall within the above three categories. It is raised in paragraph 7 of the Notice of Motion, where the third defendant claims relief as follows: "Grant relief to any defendant...damages." 30 It is alleged that damage was sustained not by the third defendant but by the third defendant's wife who is not a party to the action. The usual undertaking as to damages would not cover such damage and such a person may conceivably seek to recover damages by an independent action but, in my opinion, it would not be appropriate to grant leave to "any other person" to approach a Master to assess the damages alleged to have been sustained. In- so-far as any party to the action is concerned, then such party does not need the leave of the court to approach the Master for the assessment of damages. In my view the relief claimed under this heading is misconceived. 31 For the foregoing reasons I am of the opinion that the Notice of Motion should be dismissed. The third defendant, having failed entirely in the application, there should be an order for costs adverse to him. 32 The third defendant is to pay the costs of the Motion. 33 I direct, however, that the assessment of costs of the Motion be deferred until the conclusion of the principal proceedings. 34 Exhibit A may be returned. ********** Last Modified: 02/13/2003 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.