Greek Macedonian Club Limited v Pan Macedonian Greek Brotherhood NSW Limited [2006] NSWSC 729

New South Wales Supreme Court

CITATION : Greek Macedonian Club Limited v Pan Macedonian Greek Brotherhood NSW Limited [2006] NSWSC 729

HEARING DATE(S) : 6 July 06 JURISDICTION : Equity Division

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 07/06/2006

DECISION : Hearing vacated. Plaintiff to pay defendant's costs of and thrown away by adjournment. Operation of interlocutory injunction extended.

CATCHWORDS : PROCEDURE – adjournment – claimed ill health of crucial witnesses – unsatisfactory medical evidence – where witnesses also had responsibility for conduct of litigation on behalf of Club – where witnesses no longer giving instructions and to be replaced at imminent EGM – least risk of ultimate injustice.

PARTIES : Greek Macedonian Club "Alexander The Great" Limited (plaintiff) Pan Macedonian Greek Brotherhood "Alexander The Great" NSW Limited (defendant)

FILE NUMBER(S) : SC 6302/05

COUNSEL : Mr W Terracini SC w Mr G Newton (plaintiff) Mr J Miller (defendant)

SOLICITORS : H Danalis & Co (plaintiff) Dibbs Abbott Stillman (defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRERETON J

Thursday 6 July 2006

6302/05 Greek Macedonian Club "Alexander The Great" Limited v Pan Macedonian Greek Brotherhood "Alexander The Great" NSW Limited JUDGMENT (ex tempore) 1 HIS HONOUR: The plaintiff, the Greek Macedonian Club "Alexander the Great" Ltd (which I shall call "the Club"), and the defendant, the Pan Macedonian Greek Brotherhood "Alexander the Great" New South Wales Ltd (which I shall call "the Brotherhood"), are in dispute as to the entitlement of the Club to remain in occupation of premises owned by the Brotherhood. The Brotherhood claims that it has validly terminated the Club's lease for breach by the Club. The Club denies that there has been any valid termination, and claims a declaration and injunctive relief protecting its possession. 2 The proceedings were instituted on 14 December 2005 and there have been interlocutory undertakings and orders between the parties on foot since that date. The Club remains in possession of the club premises pursuant to these interlocutory arrangements, the last of which is an order made on 10 May 2006 by me in accordance with short minutes of order of that date that, without admissions by the defendant and upon the plaintiff giving the usual undertaking as to damages, the defendant be restrained until midnight on 7 July 2006, from acting upon or implementing a purported notice of termination dated 16 November 2005 and served on the plaintiff about that date. That order, therefore, expires tomorrow. 3 In February 2006, an order was made that the plaintiff give security for costs in the sum of $25,000, which it has paid. The matter has been set down for hearing to commence today since 23 March 2006 when, on the defendant's application for expedition, the Chief Judge fixed the matter. On 1 June 2006, by consent, I made an order that the plaintiff give security for the defendant's costs in a further sum of $15,000, and I am informed that that amount has not yet been paid. That order was deliberately not accompanied by any condition that there be a stay if it not be paid, because the parties desired to ensure that the appointed hearing dates, today and tomorrow, be kept. 4 By notice of motion filed on 4 July 2006, the plaintiff moved to have the hearing dates vacated. The basis of the application is the ill-health of Mr Constantinidis, a director and secretary of the plaintiff, and of Mr Papadopoulos, formerly president of the plaintiff, who is said to have resigned for medical reasons on or about 6 June 2006. Mr Constantinidis and Mr Papadopoulos have both sworn affidavits in the proceedings and the plaintiff's case is, as I understand it, wholly dependent on their evidence. 5 So far as Mr Constantinidis is concerned, the plaintiff's solicitor has given evidence of diligent endeavours made on his, the solicitor's, part to obtain instructions and evidence in reply from Mr Constantinidis since about 27 March, with increasing frequency up to the present but without significant success. 6 The medical evidence is comprised in a report of Dr Eliades of 14 June 2006, to the effect that Mr Constantinidis was assessed with regard to a weight loss procedure for morbid obesity and has multiple co-morbidities, including hypertension, non-insulin dependent diabetes, obstructive sleep apnoea, chronic airways disease and osteoarthritis involving his thoracolumbar spine and both knees. It is said that his condition over the last six months has rapidly deteriorated, and that his conditions manifest themselves as shortness of breath with minimal exertion, poor sleep and pain. Dr Eliades opines that Mr Constantinidis is also suffering from extreme anxiety with depressed mood. Dr Eliades concludes that his current condition precludes him from properly focusing on any subject matter effectively, and the doctor does not feel that he is capable of fully instructing the necessary people for the legal matters that require his direct attention and focus. I observe that Mr Constantinidis' conditions appear to be chronic, not acute, and appear to have been present over a period of six months, and not of recent onset. 7 So far as Mr Papadopoulos is concerned, he is described as having had major cardiac surgery in September 2005 with a background history of hypertension which is well controlled and lumbosacral problems. He is said to be unable to return to any form of gainful employment in a certificate dated 10 February 2006, which hardly demonstrates unfitness to give evidence in the present proceedings. In a more recent certificate of 4 July, he is said to have had cardiac surgery (which was nearly a year ago), and to have been diagnosed with diabetes last week, and to suffer from anxiety. The doctor, plainly ill-informed as to the nature of these proceedings, requested his exemption from jury duty. 8 I have to say that I find the medical evidence less than compelling, to state the matter as generously as I can. Even if these gentlemen are unfit to attend court today, and I am not satisfied that they are unfit to attend court, the Court would hear their evidence, whether directly or on commission, at their premises, or at premises convenient to them where they might be cross-examined. But this course is rendered unnecessary because of a concession proffered by Mr Miller that, if his objections to their affidavit evidence are upheld, and my provisional view is that most, though not quite all of them would be upheld, then those witnesses would not in any event be required for cross-examination and, as I understand it, Mr Miller would take his chances that, though they were not cross-examined, I would - in the light of the contradicting evidence which he has available, and the documentary evidence - prefer the Brotherhood's case. 9 For those reasons, while appreciating that the evidence of Mr Constantinidis and Mr Papadopoulos is essential to the plaintiff's case, their unavailability to give evidence, even if that were established, would not persuade me that the case ought to be adjourned. 10 But that is not the only basis on which the application is made. Mr Papadopoulos and Mr Constantinidis are the people, so it would seem, who have had the conduct of the case on behalf of the Club, and the people who have been the source of instructions for the Club's lawyers. The Club's lawyers have made increasing efforts to obtain instructions, without any significant success. Mr Terracini SC, who appears for the plaintiff today, informs me, and I accept, that he has himself made endeavours this morning to obtain instructions to concede some of the objections which have been taken, but Mr Constantinidis has steadfastly refused to give any instructions, for the reason that an Extraordinary General Meeting of the Club is to be convened on 13 August 2006, for the purpose of electing a new committee, for which he will not be a candidate. Mr Papadopoulos has already resigned his office, and I understand he too will not be a candidate. It appears that neither is prepared to take responsibility for giving instructions in the meantime. 11 The result is that, for all practical purposes, the Club's lawyers are left without the ability to obtain sensible instructions. If it were the interests only of Mr Constantinidis and Mr Papadopoulos that were at stake, then that would be of their own doing, and I would be disinclined to accede to an application for an adjournment, but I think I must take into account that, in reality, it is the interests of the members of the Club, who are by no means just Mr Papadopoulos and Mr Constantinidis, that are ultimately at stake in these proceedings. If I were not to grant an adjournment, those members would effectively be left in the position that their case was not heard in the Court, due not to their own default, but to the unwillingness of Mr Constantinidis and Mr Papadopoulos to continue to conduct the matter on behalf of the Club. 12 The situation is a most unsatisfactory one. The Brotherhood will be put to costs as a result of any adjournment, and the Court's time will be wasted and other litigants disadvantaged as a result, but ultimately I think the test has to be what course will involve the least risk of ultimate injustice to one or other party. 13 So far as the position of the Brotherhood is concerned, the prejudice which it will suffer from an adjournment is, first, the costs thrown away as a result of any adjournment; secondly, the rents to which it would be entitled during the period of an adjournment; and, potentially, thirdly, the fact that it may be unable to recover its costs at the end of the proceedings, at least in part, for want of the security being sufficient to cover those costs. 14 Each of those prejudices can, I think, be met by an appropriate condition attached to any adjournment, and it is essentially for that reason that while, as I have said, the position is quite unsatisfactory, the least risk of ultimate injustice is achieved by granting an adjournment, but on terms which meet those prejudices. 15 Upon the undertaking of the plaintiff by its counsel that, first, it will pay into court by close of business tomorrow, 7 July 2006, the outstanding security for costs pursuant to the order made on 1 June 2006 of $15,000 and a further sum by way of security for costs in the sum of $2,500 and secondly, that it will pay to the defendant rent or occupation fees, as the case may be, of $10,000 (due on or about 30 June 2006) by 14 July 2006, and a further $3,333 by 30 July 2006 and thirdly, that until further order it will not interfere with the plant and equipment in the Club premises, and fourthly, that it will proceed with an extraordinary general meeting for the election of a new committee on 13 August 2006, I order: 16 First, that the hearing appointed to commence today be vacated; 17 Secondly, that the proceedings be stood over to 17 August 2006 at 9.30am for further mention; 18 Thirdly, that the proceedings be stood over to the Expedition List tomorrow, 7 July 2006, before me for fixture of a further hearing date; 19 Fourthly, that the plaintiff pay the defendant's costs of and thrown away by the adjournment; and, 20 Fifthly, that the operation of the interlocutory injunction last noted on 10 May 2006 in paragraph 1 of the notation of that date be extended up to and including 17 August 2006. **********