New South Wales Supreme Court CITATION : Abraham v Longobardi [2009] NSWSC 1162 HEARING DATE(S) : 9 October 2009 JUDGMENT DATE : 9 October 2009 JURISDICTION : Equity JUDGMENT OF : Slattery J at 1 EX TEMPORE JUDGMENT DATE : 9 October 2009 DECISION : Matter restored to list. Direct that both sides attend upon the registrar in equity as soon as reasonably practicable for the allocation of a hearing date. CATCHWORDS : PROCEDURE - matter dismissed in default of appearance before Registrar - proceedings ready for hearing - no serious fault on part of plaintiff for non-appearance - proceedings restored to list LEGISLATION CITED : Property (Relationships) Act 1984 (NSW) Uniform Civil Procedure Rules 2005 r36.16(2)(b) CATEGORY : Principal judgment PARTIES : Plaintiff: Yael Abraham Defendant: Mark Clifford Longobardi FILE NUMBER(S) : SC 2874/07 COUNSEL : Plaintiff: Ms Abraham (Self Represented) Defendant: Mr P O'Loughlin SOLICITORS : Plaintiff: Ms Abraham (Self Represented) Defendant: Bowral Legal IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION SLATTERY J FRIDAY 9 OCTOBER 2009 2874/07 YAEL ABRAHAM v MARK CLIFFORD LONGOBARDI JUDGMENT 1 HIS HONOUR: This is an application made by motion brought by the plaintiff, Yael Abraham to restore these proceedings to the list. On 2 April 2009, the proceedings were struck out on account of Ms Abraham's non appearance. Ms Abraham seeks orders under the Property (Relationships) Act 1984 as principal relief in the proceedings. 2 I am told by Mr O'Loughlin, who appears on behalf of the defendant, Mr Longobardi, that if the matter remains struck out, the applicable statutory limitation period means that Ms Abraham will lose all her rights arising out of the alleged relationship which is said to be the foundation of the proceedings. 3 The circumstances that led to the matter being struck out on 2 April 2009 are the following. It was listed for directions on an occasion shortly before 2 April. Ms Abraham says that she arrived a few minutes after the case had been called. The day prior to the mention she had telephoned the solicitor for Mr Longobardi and informed her that she (Ms Abraham) could not get to court on time and asked to have the matter stand in the list until her arrival between 10.30 and 11am. 4 After she missed this directions hearing, she was told she would receive a letter in the post telling her of the next appointed date. That next date was 2 April 2009. She says she did not receive that letter. She was informed after 2 April by the registry that the matter had been dismissed for her failure to attend on 2 April. She gave notice of her protest at this dismissal soon afterwards. 5 A response to that account by Ms Abraham is given by the solicitor with carriage of the matter on behalf of Mr Longobardi. Toni Louise Bartush Peak says in her affidavit of 28 August 2009, para 22, that she did not receive any communication from the plaintiff, in relation to the directions hearing before 2 April, the day she was late for Court. She indicates, at para 21 of her affidavit that she too did not receive a notice of relisting of the matter from the court. There does appear to be evidence on both sides in this case that notification did not come from the court about the date of 2 April 2009. Whatever the administrative reasons for that, it may have contributed to the position in which Ms Abraham found herself on 2 April. 6 I do not have to decide the question of whether or not a phone call took place between Ms Abraham and Ms Bartush Peak before her non-appearance at the directions hearing on the previous occasion. The conflict in what both parties say about that is noted. 7 The other background factor is that the proceedings are said by both sides - to be ready for hearing. One might normally express a degree of scepticism about such a statement where proceedings have been dismissed. However this case does seem to be ready for hearing. The matter has been vacated once before when listed before Young J. It is uncontested that as a result of changed circumstances involving an alteration to the value of certain mineral rights that the summons was amended and additional evidence was put on. The plaintiff Ms Abraham also indicates that some ten or more witnesses as to the alleged relationship with Mr Longobardi have been gathered. Some of them are elderly as her supplementary affidavit says. One is in her nineties, and another in her eighties. They are ready to give evidence in the near term. 8 Mr O'Loughlin does not contest that I have the power under UCPR r 36.16 to set aside or vary the order made by the registrar dismissing these proceedings in the absence of Ms Abraham. For the following reasons I will set aside that order. 9 There is no objective reason to discount the evidence given in the plaintiff's affidavit that she was not properly notified about the date of 2 April. Whatever be the reason that occurred, whether it was because of an omission to inform her by the other side or because of some administrative act, that fact meant that she was not given notice of the date. There appears to be no grave fault on her side for her non appearance. She has appeared, on any other past occasions. This lapse was exceptional. The matter otherwise seems to be ready. It is hardly a proper balance for her to be penalised effectively by the loss of all her rights for a single non appearance in those circumstances. 10 I am minded to take this course also because I am told by Ms Abraham that the proceedings are ready for hearing, and that all amendments have now been undertaken, and that the elderly witnesses referred to need to give evidence soon. Accordingly, I will restore the matter to the list. But I direct that in fulfilment of the strong indications given in the course of argument today that both sides attend as soon as reasonably practicable, upon the registrar in equity for the allocation of a hearing date. ********** 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.