Aurifera Consultants Pty Ltd v Kounnas [2011] NSWSC 1606

Supreme Court New South Wales

Medium Neutral Citation: Aurifera Consultants Pty Ltd v Kounnas [2011] NSWSC 1606 Hearing dates: Thursday, 1 December 2011 Decision date: 01 December 2011 Jurisdiction: Equity Division - Duty List Before: White J Decision: Refer to paras [12]-[14] of judgment. Catchwords: PRACTICE AND PROCEDURE - application for extension of caveat - no appearance by plaintiff at hearing - plaintiff does not wish to proceed - application dismissed with costs Category: Principal judgment Parties: Aurifera Consultants Pty Ltd (Plaintiff) Chrisoula Kounnas (Defendant) Representation: N/A (Plaintiff) J Darvall (Defendant) N/A (Plaintiff) Urania Zafiris, Solicitor (Defendant) File Number(s): 2010/346630

Judgment 1HIS HONOUR: By summons filed 19 October 2010 the plaintiff sought an order extending the operation of a caveat. On 20 October 2010 the Court ordered that the caveat be extended until further order of the Court. The proceedings were listed for hearing before Sackar J on 3 August 2011. On that day a Mr Lee Ash appeared on behalf of the plaintiff and applied to vacate the hearing date. That application was successful. The matter was re-listed before Sackar J for directions on 11 August 2011 and again on 22 August 2011. On the latter day, orders were made requiring the plaintiff to file a statement of claim by 1 September 2011 and any affidavits upon which it intended to rely by 12 September 2011. Proceedings were listed for further directions on 5 October 2011. The plaintiff filed a statement of claim. He has not served any further affidavits. 2On 5 October 2011 orders were made by consent requiring the plaintiff to serve further affidavits by 18 October 2011. The matter was re-listed for further directions on 19 October 2011. There was an appearance on 19 October 2011 by a solicitor, Mr Khoury, who then appeared for the plaintiff. Further orders were made for the service of the plaintiff's affidavits. The matter was re-listed on 23 November 2011. On 22 November 2011 the plaintiff's solicitors advised the defendant's solicitors they were no longer acting on behalf of the plaintiff, although no notice of intention of ceasing to act or notice of ceasing to act has been filed. 3On 23 November 2011, when the matter was next before the Registrar, the plaintiff's solicitor was excused. The Registrar order that the proceedings be stood over to the Duty Judge on 30 November 2011 for " short ex-parte hearing ". 4The Registrar directed the defendant to notify the plaintiff of the adjourned date. The defendant did that. As well as advising the plaintiff of the Registrar's order that the matter was listed for a short ex parte hearing the defendant's solicitor advised the plaintiff that the defendant would apply on 30 November 2011 for dismissal of the summons and payment of costs. 5When the matter came before me yesterday I declined to dismiss the proceedings. Although the defendant had given the plaintiff notice of its intention to apply for orders for dismissal, the plaintiff was also given information that the matter was listed for an ex parte hearing. 6I directed that the matter be fixed for hearing before me today and directed the defendant to notify the plaintiff of the orders that the defendant would be seeking on the hearing today. 7Notice has been duly given to the plaintiff. The plaintiff has stated that it would not be appearing and that it would not be paying any costs. 8I am satisfied that the plaintiff does not wish to proceed with the matter. Although it is not clear that the plaintiff is formally in default of any court order, the plaintiff obtained an order that an earlier hearing date be vacated where it was provided that the plaintiff serve further evidence that it has refused to do. 9The matter is fixed for hearing today and there is no appearance for the plaintiff. 10The defendant's evidence is to the effect that the mortgage, or purported mortgage, upon which the plaintiff seeks to rely was not signed by the purported mortgagor and is a forgery. It does not seem to have been registered. 11The defendant is entitled to the orders it seeks. 12I order that the summons and the claims for relief in the statement of claim be dismissed. 13I order that by 5 December 2011, the plaintiff withdraw caveat number AE884968N. 14I order that the plaintiff pay the first defendant's costs. These orders may be entered forthwith. 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. Decision last updated: 22 December 2011