Abacus Property Developments v Cynthia Jian Er Huang [2007] NSWSC 47

New South Wales Supreme Court

CITATION : Abacus Property Developments v Cynthia Jian Er Huang [2007] NSWSC 47

HEARING DATE(S) : 01/02/07 JUDGMENT OF : Gzell J

EX TEMPORE JUDGMENT DATE : 1 February 2007

DECISION : Hearing vacated. First defendant ordered to serve material by specified date and pay costs thrown away forthwith upon assessment or agreement, failing which not entitled to adduce evidence at trial without an order of the court.

CATCHWORDS : PROCEDURE - Miscellanous Procedural Matters - Adjournments - Vacation of hearing on terms - No new prinicples

LEGISLATION CITED : Civil Procedure Act 2005 Conveyancing (Sale of Land) Regulation 2000

CASES CITED : Queensland v JL Holdings Pty Ltd (1996-1997) 189 CLR 146

PARTIES : Abacus Property Developments Pty Ltd - Plaintiff Cynthia Jian Er Huang - First Defendant

FILE NUMBER(S) : SC 6231/04

COUNSEL : Mr W Waugh - Plaintiff Mr A Hourigan - First Defendant

SOLICITORS : Lamrocks Solicitors, By their city agents Rishworth Dodd & Co - Plaintiff

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

GZELL J

THURSDAY 1 FEBRUARY 2007

6231/04 ABACUS PROPERTY DEVELOPMENTS PTY LTD v CYNTHIA JIAN ER HUANG & ANOR EX TEMPORE JUDGMENT 1 This matter is listed for trial before me today and tomorrow. The first defendant applies for the vacation of the hearing. Counsel who appears in the name of the first defendant was retained on Tuesday afternoon. 2 The first defendant was represented before Registrar Walton on 13 September 2006 when the matter was set down for trial. Mr Hourigan, who appears as counsel for the first defendant, says that his instructions are that the person retained to appear on behalf of the first defendant before the Registrar left the country shortly after that event without communicating to the first defendant or her husband, Mr Ma, the fact that the matter had been set down for trial. 3 Mr Ma became aware last Friday that the matter had been set down and was advised to obtain a file held by the Fair Trading Tribunal. The affidavits were not on the file. Mr Ma had been informed by the solicitors for the plaintiff on 11 December 2006 that the matter was to be listed before me for mention the following day and that he should arrange for somebody to be present. He did not do so. 4 The plaintiff's claim is that the first defendant cancelled a contract for sale to her of real property. The plaintiff seeks the difference in purchase price upon re-sale of the property, interest and the release of the deposit by the real estate agent, the second defendant. 5 There is a defence and a cross-claim. The cross-claim alleges that the plaintiff was in breach of a statutory warranty implied under item 1(d) of Pt 1 of Sch 3 of the Conveyancing (Sale of Land) Regulation 2000 in that the property was subject to the prospect that an upgrading or demolition order might be made. No evidence has been adduced on behalf of the first defendant to ground that cross-claim. 6 The statement of claim was filed on 19 November 2004 and the plaintiff's evidence was sworn in November 2004 and on 1 December 2004. The defence and cross-claim was filed on 24 December 2004. On 16 August 2005, orders were made that contained an order for the plaintiff/cross-defendant to file a defence to the cross-claim by 30 August 2005. That was not done until 29 September 2005. 7 The first defendant has been in the country and was not contacted by telephone until yesterday afternoon. She was not available to appear in court this morning. 8 Counsel has not spoken with her, nor received formal instructions other than those conveyed to him by Mr Ma. Mr Hourigan informs me that the matter is not ready for trial, he is not in a position to deal with the matter and, should the application for the vacation of the hearing not be granted, he will seek leave to withdraw. 9 The matter is in small compass. The amount is modest. The deposit is of the order of $24,000 and the difference in price between the first and second sale is of the order of $60,000. I am informed that the second defendant, the real estate agent who held the deposit, paid the deposit into court. 10 Mr Waugh, who appears for the plaintiff, opposes the adjournment on the basis of the involvement of Mr Ma and his knowledge that the matter was to be listed before me on 12 December last year. As I have said, the evidence was sworn in November and December of 2004 and the witnesses are available, although they have not been required for cross-examination. Mr Waugh can point to no prejudice other than the length of time since the institution of the proceedings. 11 The Civil Procedure Act 2005, s 56 provides that the overriding purpose of the Act and the rules of court in their application to civil proceedings is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Section 57 provides that for the purpose of furthering that overriding purpose, proceedings are to be managed having regard, amongst other objects, to the efficient disposal of the business of the court and the efficient use of available judicial and administrative resources. 12 Those objectives were introduced having in mind the decision of the High Court in Queensland v JL Holdings Pty Ltd (1996-1997) 189 CLR 146. But it seems to me that the decision in that case that justice is the paramount consideration, remains a guiding principle and an important factor to be considered in determining whether or not to grant an application such as that before me. 13 If the application is refused, the first defendant will be forced to conduct her defence and cross-claim in her absence and by the agency of her husband,igHigh High who has only recently obtained copies of the affidavits, but not the exhibits to one of them. In those circumstances, the first defendant's issues will not be properly ventilated and justice to the parties will not be served. 14 In my view, the monetary aspects of this case can be accommodated by a suitable order for interest. The prejudice that the plaintiff has suffered by being kept out its moneys, if it is successful, for so long can be ameliorated. 15 I propose to make the following orders subject to any further submissions from the Bar table: "I vacate the hearing before me set down for two days commencing today. I order the 1st defendant to serve any affidavits upon which she seeks to rely at trial by no later than 4.00 pm on Friday 16 February 2007 failing which she shall not be entitled to adduce any evidence at trial unless by order of the court. I order the 1st defendant to pay the costs thrown away by the adjournment forthwith upon assessment or agreement failing which she shall not be entitled to adduce any evidence at trial unless by order of the court. I stand the matter over before the Expedition List judge at 10.00 am on Friday 16 February 2007. I direct the plaintiff to file and serve a notice of motion for expedition and an affidavit in support by no later than 4.00 pm on Wednesday 14 February 2007." 16 There being no further submissions, I make orders in those terms.