New South Wales Supreme Court CITATION : Mineaplenty Pty Limited v Trek 31 Pty Limited [2006] NSWSC 718 HEARING DATE(S) : 05/07/06 JURISDICTION : Equity Division JUDGMENT OF : Brereton J EX TEMPORE JUDGMENT DATE : 07/05/2006 DECISION : Adjournment allowed on terms. CATCHWORDS : PROCEDURE – adjournment – ill-health of principal of party – desirability of presence to instruct as well as give evidence – unsatisfactory medical evidence. LEGISLATION CITED : Conveyancing Act 1919 (NSW), s 133E Uniform Civil Procedure Rules 2005 (NSW), r 7.27 PARTIES : Mineaplenty Pty Limited (plaintiff/respondent) Trek 31 Pty Limited (defendant/applicant) FILE NUMBER(S) : SC 5631/05 COUNSEL : Mr Hand (plaintiff/respondent) (sol) Mr Lowenstein (defendant/applicant) SOLICITORS : David Hand, Solicitor (plaintiff/respondent) Timothy Hemsley & Associates (defendant/applicant) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BRERETON J Wednesday 5 July 2006 5631/05 Mineaplenty Pty Limited v Trek 31 Pty Limited JUDGMENT (ex tempore) 1 HIS HONOUR: The plaintiff Mineaplenty Pty Limited is the lessee of a caravan park at Lavington, near Albury, of which the defendant Trek 31 Pty Limited is the lessor, under a lease for a term of five years from 22 December 2000, with three options to renew for further five-year periods. Mineaplenty contends and Trek 31 disputes that Mineaplenty has validly exercised the first option and is entitled to a new lease until 22 December 2010. By its summons it claims a declaration and orders to that effect, and alternatively, relief pursuant to Conveyancing Act, s 133E, from the consequences of any breach of covenant which would otherwise preclude it from exercising the option. Trek 31 cross-claims for damages for breach of covenants in the lease, and for possession of the caravan park. 2 The proceedings were instituted on 28 October 2005, and were first returnable before the Registrar on 2 December 2005. The parties reached an interlocutory arrangement by which Mineaplenty is to remain in possession of the caravan park until the proceedings are determined. It was a condition of that interlocutory arrangement that Mineaplenty apply for expedition of the proceedings, and the matter first came before the expedition list judge on 9 December 2005, when directions were made for its management. Expedition was formally granted on 24 February 2006, and on 31 March 2006 the proceedings were fixed for hearing to commence next Monday for four days. 3 On 24 March 2006, Trek 31 filed a notice of motion for security for costs, and on 27 April, by consent, an order was made that Mineaplenty give security in the sum of $12,500, which amount has been paid by way of security to the Registrar. 4 The matter was before me for pre-trial directions on 8 June 2006. Despite those directions, at this stage no party has lodged a list of pleadings and affidavits on which it intends to rely, which was required to be lodged by 30 June, and no party has delivered a bundle of documents which was required to be delivered by 4 July. 5 Mineaplenty has, at this stage, served affidavits of its principal, Mr and Mrs Taylor, both of whom reside at Lavington, near Albury, and of its solicitor, Mr Hand, though it is not clear whether his affidavit will be relied on at the hearing. Trek 31 has served three affidavits of its principal/director, Mr Prendergast, who also resides in Lavington. 6 On 21 June 2006, Mr Prendergast sent a letter to the solicitor who until then was acting for Trek 31, Mr Koschizke of Messrs Harris Lieberman Boyd of Albury, terminating that firm's retainer. On 22 June 2006, those solicitors, on behalf of Trek 31, filed a document entitled "Notice of Ceasing to Act", pursuant to Uniform Civil Procedure r 7.27. At this stage no notice of change of solicitor under rule 7.26, nor notice of appointment of a new solicitor under rule 7.28, has been filed, but Timothy Hemsley and Associates, solicitors of Albury, are apparently now acting for Trek 31, and Mr Loewenstein of counsel has appeared, instructed by that firm, today and given an undertaking that a notice of appearance will be filed on their behalf. 7 That firm has forwarded to the court a notice of motion, together with an affidavit of Mr Hemsley supporting it, which claims an order vacating the hearing, principally upon grounds of Mr Prendergast's claimed ill health, but also, in part, upon grounds relating to difficulty in preparing the matter for the trial, arising from the recent change of solicitors. 8 Mr Prendergast's evidence is, it is fair to say, essential to Trek 31's cross-claim for damages for breach of covenant. At one stage I contemplated the possibility that it might not be essential to Mineaplenty's claim, so that at least the question whether there had been a valid and effective exercise of the option could be determined. However, as, in the course of argument, Mr Hand responsibly accepted, even if the original purported exercise were, on its face, valid and effective, there is an issue as to whether it has been waived, or whether Mineaplenty is now estopped from relying on it, and that issue apparently turns on conversations for which Mr Prendergast's oral evidence is necessary. 9 Moreover, as Mr Loewenstein points out, given that Mr Prendergast is Trek 31's principal, it is highly desirable that he be able to be present, not just to give evidence, but to provide instructions in the course of the hearing. 10 The evidence of Mr Prendergast's ill health is quite unsatisfactory. First, one Dr Ingle of Thurgoona, which I suppose is near Albury, gave a certificate on 30 June 2006 that Mr Prendergast was receiving medical treatment, and for the period from 30 June 2006 to 28 July 2006 would be unfit to attend court. Then, on 3 July 2006, Dr Ingle issued a further certificate, in the following terms: To Whom It May Concern Ronald Prendergast, DOB 7th October, 1930, suffers from poorly controlled Insulin Dependent Diabetes Mellitus, Obesity, Hypertension, Osteoarthritis, severe Peripheral Vascular Disease, Diabetic Nephropathy and has a pacemaker plus Diabetic Retinopathy. In my opinion a prolonged absence form his regular routine and medical treatment will be detrimental and dangerous. Mr Prendergast has advanced Diabetes with end organ damage and therefore has a guarded prognosis. I would advise his pending court case be postponed until at least early September to prepare him physically for the ordeal. 11 It may be observed that the conditions from which Mr Prendergast is said to suffer appear to be chronic, not acute. It may also be observed that the certificate does not explain why absence from regular routine would be detrimental or dangerous, and it does not explain what medical treatment he is receiving, absence from which would be detrimental or dangerous. While the second certificate contemplates that he might be prepared physically for "the ordeal" by September, it is entirely unapparent how he would be prepared for that event, and what if any treatment would be involved; whereas the first certificate refers to 28 July as the end date of his unfitness. In any event, the second certificate appears to contemplate a prolonged absence from regular routine and medical treatment of the type which might well be occasioned by attending a trial in Sydney for four days, but would not be involved if the matter were heard proximate to the locations of Mr Prendergast's residence and medical treatment. 12 I should also record that, because the Court was concerned at the sufficiency of Dr Ingle's evidence, attempts were made to have him available to explain his certificate on the telephone, but the defendant/applicant has been unsuccessful in procuring his cooperation for that purpose. 13 Despite these unsatisfactory aspects, there is nonetheless some reason in Dr Ingle's evidence, unsatisfactory as it is, to suppose that a prolonged attendance in Sydney would be inimical to Mr Predergast's health. 14 As to the preparedness of the defendant for the hearing, that arises solely because of the defendant's decision at a late stage to change solicitors. No satisfactory explanation has been put before the court for that decision and while, of course, weight is to be given to the entitlement of parties to be represented in proceedings by lawyers in whom they have confidence, there is nothing before me at this stage which would justify any view other than that any difficulty in this respect seems to be attributable to Mr Prendergast's own decision to dispense with his former lawyers. Nonetheless, there is now a real practical impediment to his new lawyers being prepared for the trial. 15 Other than Mr Hand, no witness or legal representative who has been involved in the proceedings for any time has a connection with Sydney. All are located in, or near, Albury. It seems to me that any health detriment to Mr Prendergast may be addressed by hearing the case in Albury, and the Court is able to do that in late August. In those circumstances, I have decided that it is not desirable to proceed to determine the plaintiff's claim, or even the question of the validity of the exercise of the option as a separate question, when the matter is set down next week. In so deciding, I have been particularly influenced by the circumstance that, in light of the interlocutory arrangements in place, and Trek 31's concession that they should continue, no significant prejudice will be occasioned to Mineaplenty from a deferral of the hearing for a month or two, until the matter can be heard in Albury. 16 However, the circumstances in which the application is made are such that Mineaplenty has been put to costs, and the costs of the application and the costs thrown away by the vacation of the hearing should be borne by the defendant/applicant. Although it may well be, as Mr Hand submits, that those costs amount to more than the $2,500 figure which I propose to release from the security held, my adoption of that figure for this limited purpose in no way limits what ultimately might be claimed. I think the figure of $2,500 is an appropriate sum to release as an approximation of the costs incurred and/or thrown away by the plaintiff as a result of this application. 17 I make the following orders: 1. Order that the hearing appointed to commence on Monday 10 July 2006 be vacated. 2. Provisionally fix the matter for hearing before me on Wednesday 30 August at Albury for two and possibly three days. 3. Order that the defendant pay the plaintiff's costs of the application. 4. Order that of the amount of $12,500 paid into court by the plaintiff as security for costs pursuant to the orders made on 27 April 2006, the sum of $2,500 be released to the plaintiff forthwith. 5. Stand over to Tuesday 18 July 2006 at 9.30 am for further directions. ********** 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.