New South Wales Supreme Court CITATION : Reliance Financial Services (NSW) Pty Ltd v Francesco Criniti & ors [2010] NSWSC 1517 HEARING DATE(S) : 9 December 2010 JURISDICTION : Equity Division JUDGMENT OF : Brereton J EX TEMPORE JUDGMENT DATE : 9 December 2010 DECISION : Give summary judgment against the first, second and third defendants CATCHWORDS : PROCEDURE – Supreme Court Procedure – New South Wales – Procedure under Uniform Civil Procedure Rules and other rules of court – Summary disposal (CTH) Trade Practices Act 1974 LEGISLATION CITED : (NSW) Contracts Review Act 1980 (NSW) Uniform Civil Procedure Rules 2005 r 13.1 CATEGORY : Principal judgment Reliance Financial Services (NSW) Pty Ltd (plaintiff) PARTIES : Francesco Criniti (first defendant) Caterina Criniti (second defendant) Josephine Joan Romano (third defendant) FILE NUMBER(S) : SC 2005/258350 COUNSEL : D A Allen (plaintiff) SOLICITORS : Proctor & Associates (plaintiff) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BRERETON J Thursday, 9 December 2010 2005/258350 Reliance Financial Services (NSW) Pty Limited v Francesco Criniti JUDGMENT (ex tempore) 1 HIS HONOUR: On 10 March 2009, I granted leave to the plaintiff to further amend its statement of claim by filing a third further amended statement of claim. I directed that the defendant file and serve its defence and any cross-claim by 8 April 2009, with any reply to the defence and defence to cross-claim to be filed and served by 29 April 2009. The third further amended statement of claim was filed, in compliance with those directions, on 16 March 2009. 2 On 1 May 2009, on the application of the defendants, directions were made effectively permitting them an extension of time in which to file their defence and cross-claim. On 2 July 2009, time for the defendants to file and serve their cross-claim was further extended, to 30 July 2009. By 20 August 2009, that had not yet been done. I declined further to vary the directions, which remained in force on the basis that the parties should comply with them before the matter returned before the Court on 3 September. 3 On 3 September 2009, there was no appearance for the defendants and the proceedings were adjourned for further directions to 18 September, when the first defendant appeared in person. Time for filing of the defences for the first, second and third defendants was further extended, to 16 October. On 23 October, time for the defendants to file and serve any cross-claim was further extended to 6 November. Directions were made for the plaintiff to serve any reply, and any defence to the cross-claim, by 20 November, for the plaintiff to serve its affidavit evidence also by 20 November, and for the defendants to serve their affidavit evidence by 4 December. 4 The defendants filed their amended defence and cross-claim on 15 December 2009. 5 On 11 December, the plaintiff's affidavit evidence-in-chief having been served (which I take largely to be comprised in the affidavit of Sam Peter Cassiniti sworn 10 December 2009 which has been read on this application), time for the defendants' affidavit evidence was extended to 15 January 2010, with the plaintiff's evidence in reply to be served by 29 January. The proceedings were adjourned to 5 February 2010. On 5 February, there was some dispute as to when Mr Cassiniti's affidavit of 10 December had been served. Further directions were made in connection with the defendants' evidence, and the proceedings were adjourned for further directions on 19 March 2010. 6 On 19 March, the defendants had not complied with those directions and a direction was made that they not be entitled to rely on any affidavit evidence not served by 13 May without the prior leave of the Court, with any evidence in reply to be served by 4 June. The proceedings were adjourned to 11 June for further directions. 7 On 11 June, the defendants' solicitors had ceased to act. The matter was adjourned to 18 November for directions, and set down for final hearing on 7 March 2011 for three days. 8 Prior to 18 November, the plaintiff served but did not file a notice of motion seeking summary relief, in circumstances where the defendants' evidence had still not been served. There was an appearance on that occasion by the defendants in person, who indicated that they would be re-engaging the same solicitors who had previously ceased to act for them. I declined to deal with the motion that day and adjourned it to today, pointing out to the defendants that it was essential that they be in a position to deal with the motion today and serve any evidence that they proposed to rely on in connection with the motion. 9 When the motion came before the Court today, the proceedings were called three times outside the Court and there was no appearance for any defendant. Inquiries were also made elsewhere in the Hospital Road building, in case there had been some confusion on behalf of the defendants, but they were nowhere to be located. 10 The history recited above demonstrates repeated default by the defendants in the service of affidavit evidence. Nonetheless, there is a pleading on file which traverses some of the allegations in the statement of claim, and raises a cross-claim – essentially for relief under the (NSW) Contracts Review Act 1980 and the (CTH) Trade Practices Act 1974. In those circumstances, it is preferable to treat this as an application for summary judgment, rather than an application for default judgment. 11 There is evidence, particularly in the affidavit of Sam Peter Cassiniti sworn 10 December 2009 and also in the affidavit of David Cassiniti sworn 4 November 2010, of the essential matters alleged in the statement of claim. There is evidence, from David Cassiniti on behalf of the plaintiff, he being a director of the plaintiff, that he believes that the defendants have no defence to the claim. So far as I am able to ascertain, the defendants have never served any evidence in support of their cross-claim, or the matters of defence raised in their defence. 12 In those circumstances, I am satisfied that the case is an appropriate one in which to exercise the power of the Court to give summary judgment under Rule 13.1. My orders are: (1) Pursuant to (NSW) Uniform Civil Procedure Rules 2005, r 13.1, I give judgment that the first, second and third defendants pay the plaintiff the sum of $1,693,010. (2) Pursuant to UCPR, r 13.1, I give judgment that the first defendant pay the plaintiff the sum of $145,000. (3) Pursuant to UCPR, r 13.1, I declare that the proceeds of sale of the land situated and known as XXX Jardine Drive Prestons in the State of New South Wales being the land comprised in lot XX deposited plan 2973 and including the sum of $700,000 held in the trust account of the defendants' solicitors Agostino & Co and any interest accrued in respect of it, are charged with payment to the plaintiff of the sum referred to in order (1) of this judgment. (4) I order that the said sum held in the trust account of Agostino & Co be paid out to the plaintiff's solicitors Proctor & Associates, upon trust for the plaintiff. (5) I order that the defendants pay the plaintiff's costs of the proceedings, save in so far as any special costs order otherwise provides. (6) I order that exhibits AX 01 to AX 04 on an earlier motion for leave to amend may be returned. ********** 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.