Ryding v Miles & Ors [2011] NSWSC 718

Supreme Court New South Wales

Medium Neutral Citation: Ryding v Miles & Ors [2011] NSWSC 718 Hearing dates: 6 July 2011 Decision date: 06 July 2011 Jurisdiction: Equity Division Before: Black J Decision: Hearing dates vacated and order for costs thrown away made. Catchwords: Practice and procedure - vacation of hearing dates. Category: Interlocutory applications Parties: Richard Ryding - Plaintiff Elaine Miles - First Defendant John Wallace Stewart - Second Defendant Alan Bruce Mils - Third Defendant Gregory John Stewart - Fourth Defendant Representation: Counsel: D.A. Lloyd - Plaintiff J. Lazarus - Defendants Solicitors: Byrnes & Cox - Plaintiff Donovan Oates Hannaford - Defendants File Number(s): 07/258209

Judgment - Ex tempore 1This is an application made to vacate a hearing date in this matter which is listed for four days from 19 July 2011. The application is supported by an affidavit of Kevin Byrnes sworn 20 June 2011. 2The application is not opposed by the defendants on the basis that an order be made that costs be thrown away. Mr Lloyd, who appears for the plaintiff, has accepted that there is little he could say in opposition to such an order in the circumstances. 3It appears from the evidence before me that what has occurred is that when this matter was listed for hearing, it was not recognised that the dates which had been allocated were not suitable either for Mr Lloyd, who has appeared in the matter for a considerable time, or for his instructing solicitor. 4Mr Byrnes' affidavit in support of the motion expresses the apprehension that the plaintiff could be prejudiced by being required to proceed in circumstances where neither counsel who had been briefed in the matter for some considerable time nor his instructing solicitor are available on the hearing dates. That apprehension may well be justified and it is entirely appropriate that the respondent has taken the constructive attitude which it has taken in respect of the application. 5The situation which has emerged is obviously undesirable. However, vacating the hearing date is unlikely to prejudice other litigants in the court since other matters can be heard in that time and it reflects an appropriate balance as between the interests of the plaintiff and the defendants provided the defendants are compensated for the costs thrown away. 6I order that: 1. The hearing dates of 19 to 22 July 2011 be vacated. 2. The plaintiff pay the costs thrown away by the vacation of the hearing date as agreed or as assessed, including the costs of today.