Clinical Laboratories Pty Ltd v General Practice Support Services Pty Ltd [2013] NSWSC 1832

Supreme Court New South Wales

Medium Neutral Citation: Clinical Laboratories Pty Ltd v General Practice Support Services Pty Ltd [2013] NSWSC 1832 Hearing dates: 10 December 2013 Decision date: 10 December 2013 Jurisdiction: Common Law Before: Davies J Decision: 1. Second Defendant's application to vacate hearing dates refused and the Notice of Motion dated 5 December 2013 dismissed. 2. Second Defendant to pay Plaintiff's costs of the Motion Catchwords: PROCEDURE - application by Defendant to vacate hearing date - application based on impecuniosity of Defendant - inadequate information about financial position - failures to comply with court directions - application refused Legislation Cited: Civil Procedure Act 2005 Cases Cited: Dawson v Deputy Commissioner of Taxation (1984) 56 ALR 367 Kingsway Group Limited v Belramoul [2009] NSWSC 345 Short v Short [1960] 1 WLR 833 Squire v Rogers (1979) 27 ALR 330 Watson v Watson (1968) 70 SR (NSW) 203 Category: Interlocutory applications Parties: Clinical Laboratories Pty Ltd (Plaintiff) General Practice Support Services Pty Ltd (First Defendant) Tufiq Shah (Second Defendant) Representation: Counsel: T Holmes (Plaintiff) C K Stewart (Second Defendant) Solicitors: Gadens Lawyers (Plaintiff) File Number(s): 2012/329959

Judgment 1These proceedings commenced on 23 October 2012 claiming money due under a deed entered into between the Plaintiff and the Defendants. The First Defendant is now under external administration and the proceedings are continuing only against the Second Defendant. 2The matter is fixed for hearing for two days commencing 16 December 2013 on 30 July 2013. 3The Second Defendant now applies to vacate the hearing principally on the grounds of his impecuniosity. The affidavit in support of the application sets out, in a somewhat abbreviated manner, the amount that the solicitors who were formerly acting for him required to defend the proceedings. 4The Second Defendant says that his financial position was such that he could not afford to provide the money required. He said his financial position began to improve after he secured a manager's job for a small dental centre in Victoria, when that was established three or four months ago. He said that that enabled him to build up a little head of financial steam and to get some basic moneys together to approach his counsel, Mr Stewart, which he did on 23 November. At the present time, Mr Stewart is appearing for him on a direct access basis. 5He draws attention to orders which he seeks in the Notice of Motion if the hearing date is vacated, which involve filing an amended defence, an amended list of documents and further evidence. 6He says in his affidavit that he has now seen the need to call certain witnesses to corroborate the defence which he had not realised hitherto. He says that he believes his financial position will improve in 2014 because of an arrangement that he has entered into with Unified Medical and Surgical Centre Pty Limited. This arrangement is apparently supposed to result in him receiving $20,000 a month from a position that he will occupy in relation to this organisation. It is not clear if the arrangement has been finalised, because the deed between those parties, which has been tendered, is still in draft form. 7The proceedings have had a chequered history, with the Second Defendant failing to comply on a number of occasions with directions of the Court. Mr Stewart says that these have occurred because of the Second Defendant's impecuniosity. 8A Motion was brought by the Plaintiff to strike out the defence because of a failure to provide a list of documents that had been ordered on two occasions by the Registrar. 9The Motion came before Beech-Jones J, who delivered judgment on 14 May. His Honour declined to strike out the defence, but said this, in his judgment: In view of the albeit inadequate steps taken, I do not think it is appropriate at this stage to order the striking out of the defence. In terms of future progress of the matter, it seems the best course is to require the Defendant to move to put on its evidence and to support the claims made in its defence. The position of the Plaintiff, as I understand it, is that, upon being appraised of what evidence the Defendant puts forward in support of its estoppel defence, it can then make an informed decision about the progress of the proceedings which might include an application for summary judgment. I will not, however, dismiss the Notice of Motion, but will instead adjourn it. I think it is worthwhile to keep the Notice of Motion seeking the striking out of the defence hanging over the Defendant's head as a means of ensuring compliance. If its current level of desultory compliance with Court orders continues, then it is likely that the Court will say enough is enough and terminate the proceedings summarily in the Plaintiff's favour. 10Despite what Beech-Jones J said, it does not appear that the Defendant has done very much towards preparing the matter for hearing despite, as I have said, it being fixed for a hearing in December on 30 July. 11One of the directions that the Registrar made on that occasion was that the Defendant should file and serve submissions by 29 November. That order has not been complied with. Instead of that, the Second Defendant filed a Notice of Motion on 15 November 2013 with an affidavit suggesting that the proceedings ought, at that stage, to have been transferred to the Equity Division of the Court, upon a basis that is very difficult to understand. 12That Motion came before the Registrar on 26 November 2013 and was, I am told, at Mr Stewart's instigation, dismissed. No explanation is provided about why the Second Defendant could spend time putting on a Notice of Motion to that effect, whilst not complying with directions of the Court that had been made for the preparation of the matter for hearing. 13The general rule is that, when a case is brought on for trial by the proper process, the Plaintiff is entitled to have it heard and determined: Short v Short [1960] 1 WLR 833 at 849; Watson v Watson (1968) 70 SR (NSW) 203 at 206. 14An adjournment for the purpose of obtaining additional evidence that should have been obtained earlier will ordinarily not be allowed: Watson v Watson at 206 and 207; Kingsway Group Limited v Belramoul [2009] NSWSC 345 at [12] - [15]). 15An adjournment will not normally be granted simply because there has been a late withdrawal of legal representatives or where there is a late retaining of legal representatives, even for the reason of an inability to pay for them earlier: Dawson v Deputy Commissioner of Taxation (1984) 56 ALR 367 at 368 - 370; Kingsway Group at [11]; Squire v Rogers (1979) 27 ALR 330 at 333, 337 and 338. 16Parties to litigation are governed by ss 56 to 58 of the Civil Procedure Act 2005. Section 58 provides that, in deciding whether to make any order granting an adjournment of proceedings, the Court must seek to act in accordance with the dictates of justice. The dictates of justice are set out in s 58(2). One of those that the Court must have regard to is s 56 of the Act which needs no restating. Other matters that the Court may have regard to include the degree of expedition with which the parties have approached the proceedings. A consideration of that matter tells strongly against the Second Defendant. 17Section 56 in this case also suggests strongly that no application for vacation of the hearing date should succeed. 18The Defendant has been on notice since July, that is, almost for a period of six months, when the matter would be heard. There is nodadequate explanation of why there has not been better preparation by the Defendant of his defence in the proceedings, even accepting that he did not have the funds to obtain legal advice until some time in late November. No explanation is offered about why he has not approached the witnesses that he says he now realises he needs to call to corroborate his defence. 19Although the Defendant may be a lay person, he is not an uneducated lay person. If he has other people who can corroborate the defence that he wishes to bring, even a lay person would know that such witnesses would be able to be called to give evidence. There is no adequate explanation for his failure to obtain affidavits from them at an earlier time. 20I am not satisfied that there is sufficient information, in any event, to justify vacation of the hearing date, based on the Second Defendant's impecuniosity. I have scant details about his financial position with most of it being directed to what he expects to earn when he enters into this new position. 21I have to consider the justice to the Plaintiff in the matter as well. 22The history of the proceedings suggests that the Defendant has either taken deliberate steps or has failed to take steps, all with a view to delaying the inevitable hearing of this matter. 23For all those reasons, the application is refused and the Notice of Motion is dismissed.