Secure Funding Pty Ltd v Deren [2013] NSWSC 1898

Supreme Court New South Wales

Medium Neutral Citation: Secure Funding Pty Ltd v Deren [2013] NSWSC 1898 Hearing dates: 16 December 2013 Decision date: 16 December 2013 Jurisdiction: Common Law Before: Schmidt J Decision: Adjournment application refused. Catchwords: PROCEDURE - application for an adjournment - refused Legislation Cited: Civil Procedure Act 2005 Cases Cited: ANZ v Mio Amico Pty Ltd [2013] NSWSC 716 Category: Procedural and other rulings Parties: Secure Funding Pty Ltd ACN 081 982 872 (formerly Liberty Funding Pty Ltd) (Plaintiff) Reny Raymond Deren (First Defendant) Insurance Australia Limited trading as NRMA Insurance ACN 000 016 722 (Second Defendant) Representation: Counsel: Mr V Bedrossian (Plaintiff) Solicitors: Norton Rose Fulbright (Plaintiff) Mr D Allchin, solicitor (First Defendant) File Number(s): 2012/203997 Publication restriction: None

EX TEMPORE Judgment 1HER HONOUR: This matter is listed for hearing for two days. A court book has been filed. The parties, by way of a document dated 5 December, signed by counsel for the plaintiff, Mr Bedrossian, and the first defendant's solicitor, Mr Allchin, have identified the issues which are in dispute. The matter is ready to proceed. The court book contains pleadings and affidavits as well as an outline of the plaintiff's submissions. 2This morning an application has been made by Mr Allchin, on behalf of the first defendant, Mr Deren, the only active defendant in the proceedings, for an adjournment of the hearing, in circumstances where Mr Allchin says, Mr Deren, learned on Friday that he was to be without counsel today. Advice of that development was then given to the plaintiff, who was informed that an adjournment application would be made. No evidence has been led in support of the application. 3Mr Allchin has given what is regrettably a somewhat vague account of the circumstances in which counsel came to withdraw. It is said, as I understand it, that counsel gave some advice, which he said had to be accepted, if he was to appear. Instructions were sought from Mr Deren, who gave instructions which counsel required and still counsel withdrew. There are some obvious difficulties with such a course of conduct. The allegation is a serious one and if it could be established, it seems to me would provide a proper basis for an adjournment application. 4Mr Allchin says further that counsel has the court book which had been promised and has not been provided to him and so he is not in a position, himself, to run the case. That is in circumstances where he has been the solicitor on the record for a considerable time, since October, and is himself signatory to the issues document. 5The principles are well settled and not really in dispute between the parties. An adjournment application when there has been a late withdrawal of a legal representative doesn't automatically lead to an adjournment. That has been discussed recently by Davies J in ANZ v Mio Amico Pty Ltd [2013] NSWSC 716 at [62]. The application is governed by the requirements of the Civil Procedure Act 2005 which in s 56 requires that the Court act to ensure its practices and procedures and powers are exercised so as to ensure the just, cheap and quick resolution of the real issues lying between the parties. Section 58, amongst other things, requires the Court to follow the dictates of justice when exercising its powers, including in relation to the granting of an adjournment and in s 57 makes provision as to the objects of case management in terms which also requires adherence to the overriding purpose specified in s 56. 6Here, Mr Deren has been on notice since Friday that the application for adjournment would be opposed. The plaintiff relies on an affidavit sworn by its solicitor, Ms McManus, which outlines the procedural history of the matter and the communications between the parties as to the adjournment application. Mr Deren was put on notice that it would be opposed and an affidavit was sought to explain the circumstances in which the application would be forthcoming. There has been no affidavit provided and no evidence led to support the application. 7Mr Allchin has appeared today and made submissions from the bar table which culminated in a statement that he is not in a position to proceed, not even having the court book. Despite making very clear to him that it was an application difficult to grant in the absence of any evidence, Mr Deren has not led any evidence as to the matters referred to in Mr Allchin's submissions. It is clearly within his power to do so. In the absence of an evidentiary basis for the adjournment application, I simply cannot conclude, consistently with the requirements of s 56 of the Civil Procedure Act, that in this case the late withdrawal of counsel is a proper basis on which to grant an adjournment of the hearing. For these reasons it is refused, although I am prepared to adjourn until noon, to allow Mr Allchin time to obtain and consider what is in the court book.