New South Wales Supreme Court CITATION : ASIC v Sydney Investment House Equities Pty Ltd [2008] NSWSC 498 HEARING DATE(S) : 15 May 2008 JUDGMENT DATE : 15 May 2008 JURISDICTION : Equity JUDGMENT OF : Hamilton J DECISION : One week of fixture for trial vacated. CATCHWORDS : PROCEDURE [32] - Courts and Judges generally - Courts - Adjournment - Discretion of Court - Late application – Liquidator who is under cross examination has long standing booking for family holiday. CATEGORY : Procedural and other rulings Australian Securities and Investments Commission (P) Sydney Investment House Equities Pty Ltd (D1) Sydney Investment House Capital Ltd (D2) Edwin James Goulding (D3) Stephen Geagea (D4) PARTIES : Sydney Investment House Pty Ltd (D5) Sydney Investment House (Newcastle) Pty Ltd (D6) Sydney Investment House (Beaconsfield) Pty Ltd (D7) Melbourne Investment House Pty Ltd (D8) Melbourne Investment House (Hawthorn) Pty Ltd (D9) Melbourne Investment House (Collingwood) Pty Ltd (D10) FILE NUMBER(S) : SC 2941/06 A J McInerney & D J Barnett (P) COUNSEL : In Person (D3) No other appearances Kim Turner, Solicitor (P) SOLICITORS : In Person (D3) No other appearances IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J THURSDAY, 15 MAY 2008 2941/06 AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v SYDNEY INVESTMENT HOUSE EQUITIES PTY LTD & ORS JUDGMENT (On application for adjournment - T477) 1 HIS HONOUR: Today is the last day of the present session of the trial. At the moment the trial is fixed to recommence for three weeks on 2 June before going over to two weeks in August. The trial was initially fixed for seven weeks. The prospective length of the trial has shortened since the time that that period was fixed in two ways. The plaintiff's claim against the fourth defendant, Mr Geagea, has been settled. Orders have been made determining that claim by Hammerschlag J and Mr Geagea and his counsel have departed from the case, leaving Mr Goulding as the sole, unrepresented defendant. Also, all the lay witnesses for the plaintiff have been called, cross examined and disposed of in a shorter time than I think anybody anticipated they would take. 2 The plaintiff's last witness is Mr Quentin Olde, the liquidator of the various companies and receiver and manager of the various relevant trusts. He is under cross examination by Mr Goulding, but it is clear that his cross examination will not be concluded today. It is in these circumstances that application is made on behalf of the plaintiff that the trial after today be adjourned not until 2 June but until 10 June. 3 The principal reason for that is that Mr Olde is booked to take a family holiday overseas during the week commencing 2 June with his wife and children and, indeed, with his brother's family. I am told that the arrangements have long been in place and that fares have been paid which are non refundable. Mr McInerney, the leading counsel for the plaintiff, has realised the problem and brought it to my attention only at this late stage because he had anticipated in various ways that Mr Olde would not be required to give evidence during the week commencing 2 June. 4 I should say two things. The first is that no formal evidence has been given of Mr Olde's arrangements. On the other hand, there has not been any challenge to the accuracy of the material that has been laid before me concerning Mr Olde. I am able to replace the lost days in that I have had the week set aside of 1 to 5 September towards writing the judgment in these proceedings. Those days can be used for the continuation of the trial, if that be necessary. However, bearing in mind the progress to date, I would hope that the trial will be able to finish without resort to those September days. Without going into detail, it is apparent that there is useful work on both sides that can be done in relation to the case in the additional week that will be afforded by the adjournment. 5 Mr Goulding has opposed the application. He has done so on the basis that this trial and what lies behind it has been and is continuing to be disruptive of his life, both commercially and personally. Again, as with Mr Olde's arrangements, there is no formal evidence to this effect, but what Mr Goulding has said from the bar table has equally not been challenged by counsel for the plaintiff and I am entirely disposed to accept what Mr Goulding has said. The strains that are imposed are imposed on Mr Goulding personally and no doubt on those around him. If this were an application to put the trial off to some day any considerable distance in the future, they would indeed weigh very heavily upon the decision I have to make. However, I am not convinced that, in the end, the granting of the adjournment actually sought will delay the ultimate determination of these proceedings. It will obviously take some time for the consideration of my judgment after the trial ends. 6 It is unfortunate, as I have already said, that these circumstances have been brought before the Court at such short notice, but mistakes do occur and a mistake has occurred in the plaintiff's camp on this occasion. I am not inclined to visit upon Mr Olde the circumstances of having to cancel a holiday which has been long planned and which involves many people other than him personally. 7 In all the circumstances, I have come to the conclusion that I should grant the adjournment sought and I do so. Mr McInerney does not, as he could not, oppose an order which recognises that if there are any legal costs thrown away by this adjournment, the plaintiff ought to bear them. 8 The orders of the Court will therefore be that at the end of today the hearing of the proceedings will be adjourned to Tuesday 10 June 2008 at 10am. The plaintiff is ordered to pay any costs of the third defendant thrown away by the adjournment. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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