New South Wales Supreme Court CITATION : Reliance Financial Services Pty Ltd v Sobbi [2007] NSWSC 424 HEARING DATE(S) : 30 April 2007 JUDGMENT DATE : 30 April 2007 JUDGMENT OF : Price J at 1 EX TEMPORE JUDGMENT DATE : 30 April 2007 DECISION : 1. Vacate the hearing set down before me for four days commencing from today. 2. Order the defendants serve any affidavits upon which they seek to rely at trial by no later than 4pm on Monday 21 May 2007, failing which they shall not be entitled to adduce any evidence at trial unless by order of the court. 3. Order that the plaintiff serve any evidence in reply by 4pm on Monday 4 June 2007. 4. Order the defendants are to pay the plaintiff's costs thrown away by the adjournment forthwith upon assessment or agreement, failing which they shall not be entitled to adduce any evidence at trial unless by order of the court. 5. Stand the matter over before the registrar on Tuesday 5 June 2007 at 9am. The matter is then to be listed for hearing during this year if that is possible. 6. Copies of the affidavits upon which the plaintiff will seek to rely at hearing are to be forwarded to the defendants' solicitors by 5pm on 4 May 2007. 7. Grant liberty to either party to apply for further orders by giving the other three days notice. CATCHWORDS : Civil procedure - application to vacate - lack of preparation for hearing - illness - dictates of justice LEGISLATION CITED : Civil Procedure Act 2005 s56, s57, s58 PARTIES : Reliance Financial Services Pty Limited v Ghandi Faizi Sobbi FILE NUMBER(S) : SC 012224/04 COUNSEL : Mr D Allen - Plaintiff Mr C Bova - Defendants IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PRICE J 30 April 2007 012224/04 Reliance Financial Services Pty Ltd v Ghandi Faizi Sobbi JUDGMENT 1 HIS HONOUR: The first and second defendants apply for a vacation of a hearing which is listed for trial before me today and for the next three days. 2 The first and second defendants are married. The second defendant does not speak or read English and the first defendant has a limited ability to speak English but is unable to read English. 3 On 13 October 2006 the defendants were represented by their son, Alan Sobbi, at the directions hearing before Registrar Walton. Mr Alan Sobbi is not legally trained and is a jeweller by occupation. On that day the Registrar listed the matter for a four day hearing which was to commence today. 4 Mr Sobbi informed the court of his understanding that the hearing would not go ahead unless the plaintiff filed its evidence in reply, as ordered, on 23 August 2006. His recollection of what occurred at the callover conflicts with the contents of the letter dated 24 April 2007 from the plaintiff's solicitors. In any event, Mr Sobbi told his parents that the matter had been listed for hearing but would not go ahead unless the plaintiff filed its evidence in reply. 5 It is evident that the defendants have come to depend on their son's assistance in the conduct of these proceedings. As a consequence, nothing was done by the defendants to prepare their case for hearing. Aitken Lawyers were not instructed to act for the defendants until the 19th of this month. On the following day the solicitors wrote to the plaintiff's solicitors advising that an adjournment would be sought as they had not had the opportunity to prepare the matter for hearing. 6 The plaintiff's claim seeks, inter alia, an order for the possession of the defendants' property at 96-98 Bulls Road, Wakeley. There is a defence and a cross-claim. The contention of the defendants' liability to the plaintiff is founded on the terms of a guarantee and mortgage of a loan to their son. There are cross-claims seeking orders that the guarantee and mortgage be set aside pursuant to the Contracts Review Act and other declaratory relief. 7 The plaintiff does not consent to the adjournment. However, no specific prejudice is relied upon other than the delay which will be occasioned if the application is granted. 8 There is a further reason for the application. The second defendant was admitted to hospital last week and has had an operation. She remains in hospital and is unable to attend the hearing. The first defendant says that he must be with his wife who needs his assistance. 9 In deciding an application for an adjournment the court must seek to act in accordance with the dictates of justice: section 58 of the Civil Procedure Act 2005. The dictates of justice include the interests of the plaintiff. 10 If the application is refused the defendants will be forced to conduct their defence and cross-claim in the absence of the second defendant whose inability to attend court is through no fault of her own. That is not to say that the defendants' inattention to the preparation of the case for hearing is in any way to be excused. It was their responsibility to ensure their case was ready to be heard. The consequences to the plaintiff of delay will be compensated for, if the plaintiff is successful, by the payment of interest. 11 In determining that it is in accordance with the dictates of justice to grant the application, I have had regard to the provisions of sections 56 and 57 of the Civil Procedure Act. 12 Accordingly, I make the following orders: (i) I vacate the hearing set down before me for four days commencing from today. (ii) I order the defendants serve any affidavits upon which they seek to rely at trial by no later than 4pm on Monday, 21 May 2007, failing which they shall not be entitled to adduce any evidence at trial unless by order of the court. (iii) I order that the plaintiff serve any evidence in reply by 4pm on Monday, 4 June 2007. (iv) I order the defendants are to pay the plaintiff's costs thrown away by the adjournment forthwith upon assessment or agreement, failing which they shall not be entitled to adduce any evidence at trial unless by order of the court. (v) I stand the matter over before the registrar on Tuesday, 5 June 2007 at 9am. The matter is then to be listed for hearing during this year if that is possible. (vi) Copies of the affidavits upon which the plaintiff will seek to rely at hearing are to be forwarded to the defendants' solicitors by 5pm on 4 May 2007. (vii) Grant liberty to either party to apply for further orders by giving the other three days notice. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.