Smith v Wikramanayake [2007] NSWSC 117

New South Wales Supreme Court

CITATION : Smith v Wikramanayake [2007] NSWSC 117

HEARING DATE(S) : 6th February - 9th February 2007

JUDGMENT DATE : 28 February 2007

JUDGMENT OF : Hammerschlag J

DECISION : Application for adjournment refused

CATCHWORDS : CIVIL LAW - PRACTICE AND PROCEDURE - application for adjournment by plaintiff on final day of hearing - forensic prejudice to defendant - ability to properly determine present claim if adjournment denied - undertaking by defendant that no Anshun, issue estoppel or analogue point would be taken

CASES CITED : Port of Melbourne Authority v Anshun Proprietary Ltd (1981) 147 CLR 589

David Smith (First Plaintiff / First Cross Defendant) John James (Second Plaintiff / Second Cross Defendant) PARTIES : Plus 55 Village Management (Albury) Pty Limited (Third Plaintiff / Third Cross Defendant) Margaret Anne Wikramanayake (First Defendant / First Cross Claimant) Prenitha Srimath Wikramanayake (Second Defendant / Second Cross Claimant) Wagga Road Properties Pty Limited (Third Defendant /Third Cross Claimant)

FILE NUMBER(S) : SC 4414/2005

COUNSEL : R Weaver (Plaintiffs / Cross Defendants) A Bell SC with P Bolster (Defendants / Cross Claimants)

SOLICITORS : The Law Company (Plaintiffs / Cross Defendants) Verekers Solicitors (Defendants / Cross Claimants)

- 3 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Hammerschlag J

28 February 2007

2005/4414 David Smith & 2 Ors v Margaret Anne Wikramanayake & 2 Ors JUDGMENT 1 On the morning of the fourth and final day of the four days for which this matter was set down for hearing, Mr Weaver of Counsel on behalf of the plaintiffs moved the Court for an amendment to the Further Amended Statement of Claim by insertion into the prayers for relief a prayer for a declaration that there is on foot between the parties an agreement that in the event that the facility known as Lavender Lodge, which is the subject of this proceedings, is sold, the first plaintiff and second plaintiff are each entitled to a one third share of the profits. 2 Subsequently Mr Weaver changed course slightly and asked for an adjournment to enable the pleading to be amended in that fashion for the further hearing of the matter to take place at some later time which the Court might be able to accommodate. 3 I refused the application and said I would furnish reasons subsequently. These are those reasons. 4 The principal issue in this case is, and has always been, an allegation by the plaintiffs of an oral agreement entered into in 2004 that the first and second defendants would transfer to the first and second plaintiffs each a one third interest in the company or such other entity as holds the property known as Lavender Lodge. That agreement was alleged to have come after an earlier agreement to split the profits on sale. 5 An earlier agreement to split the profits on sale is, or is effectively, admitted by the defendants on the pleadings and its original existence was accepted by both the first defendant and the second defendant in their oral testimony. There is no evidence of any imminent sale of the facility. 6 Mr A S Bell SC on behalf of the defendants opposed the application for the adjournment. 7 He put, as is the fact, that he had finished his cross-examination of the first and second plaintiffs and that Mr Weaver was well into his cross examination of the second defendant. Mr Bell put that he had crafted his cross-examination on the basis of the issues as they then stood and that he was prejudiced although he was not, as is often the case in these type of situations, able to articulate the precise nature of the prejudices. He also put that his clients were individuals and there was a serious question as to whether the defendants would be in a position to meet the costs consequences which might be visited upon them arising out of an adjournment. 8 Mr Weaver acknowledged that there was some prejudice to the defendants. He put that the issue of costs was a matter for subsequent consideration and should not affect the outcome of the application. 9 Mr Weaver did not submit that the court could not, and could not properly, determine the present claim if the adjournment were denied. 10 Also, Mr Bell gave an undertaking on behalf of the defendants that in the event these proceedings were determined on the present issues and thereafter the plaintiffs wished to prosecute a claim as envisaged in the proposed amendment, no Anshun (Port of Melbourne Authority v Anshun Proprietary Ltd (1981) 147 CLR 589) or issue estoppel or analogue point would be taken. 11 Having regard to the forensic prejudice to the defendants, to the undertaking given, to the fact that there is no imminent sale of the property, and in the absence, in my opinion, of any prejudice to the plaintiffs apart from costs of bringing new proceedings should they wish to do so (which in the first instance so far as their case is concerned would have to be borne by them anyway), I considered that justice would be better served in the present case by refusing the application and I accordingly did so. **********