Reliance Financial Services NSW Pty Ltd v Francesco Criniti & ors [2008] NSWSC 1397

New South Wales Supreme Court

CITATION : Reliance Financial Services NSW Pty Ltd v Francesco Criniti & ors [2008] NSWSC 1397

HEARING DATE(S) : 12 December 2008 JURISDICTION : Equity Division

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 12 December 2008

DECISION : Hearing date adjourned.

CATCHWORDS : PROCEDURE – application to adjourn hearing date – where application arises from counsel seeking adjournment mistaking original hearing date – whether unavailability of preferred counsel sufficient reason to adjourn – relevant considerations

CATEGORY : Procedural and other rulings

CASES CITED : Carson v Legal Services Commissioner (No 3) [1997] NSWCA 60 Saxby Bridge Mortgages Pty Ltd v Saxby Bridge Pty Ltd [2001] NSWCA 235

Reliance Financial Services NSW Pty Ltd (plaintiff/applicant) PARTIES : Francesco Criniti (first defendant/respondent) Caterina Criniti (second defendant/respondent) Josephine Joan Romano (third defendant/respondent)

FILE NUMBER(S) : SC 1832/05

COUNSEL : Mr D A Allen (plaintiff/applicant) Mr R J Horsley (defendants/respondents)

SOLICITORS : Proctor & Associates (plaintiff/applicant) Agostino & Co (defendants/respondents)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRERETON J

Friday, 12 December 2008

1832/05 Reliance Financial Services NSW Pty Ltd v Francesco Criniti & Ors JUDGMENT (ex tempore) 1 HIS HONOUR: On 11 November 2008, I gave judgment in an application in proceedings 2445/08, declaring that the present plaintiff Reliance Financial Services NSW Pty Ltd (the applicant in those proceedings), had been appointed as trustee of Reliance Discretionary Trust in place of the former plaintiff Reliance Financial Services Pty Ltd (the first respondent on the application). I declared that certain loans the subject of various proceedings, including the present proceeding – were assets of the Reliance Discretionary Trust, and made directions that the present proceedings, amongst others, be listed before me on 4 November 2008, and that Reliance NSW notify the defendants in the various proceedings of that listing and of the outcome of the application. 2 The intention was that, on 24 November 2008, an order substituting the present plaintiff for the previous plaintiff be made. When the matter came before me on 24 November, that order was made without opposition. However, there was some dispute as to the future conduct of the matter. Several of the matters that had been listed before me on 24 November, pursuant to the directions of 11 November, were adjourned to 8 December, before me. In the present matter, the plaintiff sought that the matter be listed before the Registrar on 8 December for allocation of a hearing date, whereas the defendants sought that it be referred to the Associate Judge's list on 2 December for hearing of its motion for summary dismissal or striking out of the proceedings. As I thought it unlikely that the matter would be heard in the Associate Judge's list – given the issues involved, the likely time to be taken and the probable congestion of that list at this time of the year – I instead adjourned the Motion before me next Monday, 15 December 2008, with a view to hearing it that day. 3 However, the plaintiff's counsel mistakenly thought that the motion had been adjourned for hearing on 8 December together with the other matters that had been adjourned to that date. It is plain from the correspondence, on the one hand that those representing the defendants had correctly identified that the matter was listed on 15 December and informed the plaintiff's solicitor of as much by letter dated 25 November, but on the other hand that the plaintiff proceeded to prepare the matter on the misapprehension that the motion was listed for hearing on 8 December, as is manifest from correspondence emanating from their solicitor on 28 November and 5 December 2008. Their misapprehension was corrected by a letter from the defendants' solicitors dated 8 December, but only despatched at 10.02am on 9 December 2008.