Roy Medich Properties Pty Ltd v Ron Medich Properties Pty Ltd [2014] NSWSC 466

Supreme Court New South Wales

Medium Neutral Citation: Roy Medich Properties Pty Ltd v Ron Medich Properties Pty Ltd [2014] NSWSC 466 Hearing dates: 16 April 2014 Decision date: 16 April 2014 Jurisdiction: Equity Division - Expedition List Before: Stevenson J Decision: Plaintiff's notice of motion for expedition is dismissed with costs Catchwords: PRACTICE AND PROCEDURE – concurrent civil and criminal proceedings – whether civil proceedings should be expedited and heard before criminal proceedings Legislation Cited: Conveyancing Act 1919 Court Suppression and Non-publication Orders Act 2010 Cases Cited: McMahon v Gould (1982) 7 ACLR 202 Gypsy Fire v Truth Newspapers Pty Limited 1987) 9 NSWLR 382 Category: Interlocutory applications Parties: Roy Medich Properties Pty Ltd (Plaintiff) Ron Medich Properties Pty Ltd (Defendant) Representation: Counsel: E A Cheeseman SC (Plaintiff) C R C Newlinds SC with D R Sulan (Defendant) Solicitors: Nescis De Pasquale Lawyers (Plaintiff) Harris & Company (Defendant) File Number(s): SC 2013/338056

Ex TEMPORE Judgment (revised) 1The plaintiff (a company associated with Mr Roy Medich) and the defendant (a company associated with his brother, Mr Ron Medich) are joint tenants of properties at Bringelly and Badgery's Creek. 2The properties have been the subject of ongoing but as yet unrealised attempts to obtain more advantageous zoning than presently exists. 3The plaintiff seeks appointment of trustees for sale pursuant to s 66G of the Conveyancing Act 1919. The defendant seeks partition of the properties. 4In 2010, Mr Ron Medich was charged with soliciting the murder of Mr Michael McGurk and with the murder of Mr McGurk. His trial will commence on 25 August 2014 and is listed to continue until 24 December 2014. It is common ground that he will not be available to give evidence in these proceedings during that period. 5The plaintiff seeks to have these proceedings expedited so that they may be heard before Mr Ron Medich's criminal trial commences. 6I am informed by Ms Cheeseman SC, who appears for the plaintiff, that, absent expedition, the proceedings would in the normal course be allocated a hearing date sometime prior to the end of this year. 7It seems to me that, leaving aside the imminence of Mr Ron Medich's criminal trial, there is nothing about this case that would warrant it being expedited. 8The plaintiff and the defendant have owned the land the subject of these proceedings for over 25 years (in the case of the Bringelly land) and for over 17 years (in the case of the Badgery's Creek land). In November 2012, the plaintiff commenced proceedings against the defendant in which it sought identical relief to that sought in the present case. On 13 May 2012 the plaintiff discontinued those proceedings, evidently with the consent of the defendant. The plaintiff commenced these proceedings on 8 November 2013. The proceedings continued in the usual way until 1 April 2014 when, for the first time, the plaintiff suggested that they be expedited. Apart from the matters said to arise from Mr Ron Medich's forthcoming criminal trial, the plaintiff does not point to any reason why it is necessary that these proceedings be determined urgently. 9The basis for the plaintiff's application for expedition is set out in par 6 and par 7 of Mr Roy Medich's affidavit of 3 April 2014, which I set out below: "6. I crave leave to refer to my Affidavit dated 8 November 2013 filed with the Summons and in particular paragraphs 12-22 outlining the purpose of purchasing the properties and the difficulties I have encountered with the joint ownership given Ron's involvement with the properties. 7. It is my belief that, if Ron is convicted of murder and this matter has not been dealt with before any conviction, the difficulties that have been encountered as a result of his involvement will become exponentially worse and there will be little or no chance for the properties being rezoned." 10Paragraphs 12 to 22 of Mr Roy Medich's affidavit of 8 November 2013 are in the following terms: "12. On or about 3 August 2001 the Plaintiff and the Defendant became the registered proprietors of the Badgery's Creek Property. 13. In about 2005-2006, in order to facilitate the Rezoning, and at my instigation, the owners of the properties adjoining the Badgery's Creek Property formed a consortium known as the Badgery's Creek Consortium. This consortium was formed with a view to the parties working together to make a co-ordinated application to the NSW Department of Planning to have the land, including the Badgery's Creek Property, rezoned as employment lands under the then Metropolitan Strategy for Sydney. That included putting forward a joint proposal for delivering infrastructure to the properties being part of the proposed Rezoning, to develop the land and also to facilitate the sharing of the costs in the planning application across the various interested landowners. 14. In about 2007, the government released the Employment Lands for Sydney Action Plan which identified the Western Sydney Employment Lands Investigation Area (WSELIA) for investigation to provide future employment land for Sydney. The Badgery's Creek Property fell within that plan. 15. Since the formation of the Badgery's Creek Consortium I have personally been involved and attended all the meetings of the Badgery's Creek Consortium which, at times, were monthly meetings. From the time that we purchased the Badgery's Creek Property, my son, Anthony Medich ("Anthony"), has been involved in leasing activities and the day to day running of the property. From the time that we purchased the Badgery's Creek Property, Ron has had minimal involvement in the day to day management of the Badgery's Creek Property other than to contribute his half share of all expenses incurred. 16. In October 2010, Ron was arrested for the alleged murder of Michael McGurk. Subsequently he was charged with the intimidation of Michael McGurk's wife (hereinafter referred to as "Criminal Charges"). In September 2013, Ron was committed to trial for both Criminal Charges. 17. He has also been involved in a number of parliamentary and Independent Commissions Against Corruption (ICAC) enquiries which resulted in an ICAC finding in September 2012 that he was guilty of corruption for bribing and providing other benefits to the Aboriginal Land Council. In early 2010 there was an ICAC inquiry in relation to whether there was any improper relationship of influence between Ron and the Department of Planning officials, members of the government, Ministers and city councillors. ICAC found that there was no such corruption. I believe that this media coverage has had an adverse effect of the attitudes of others towards Ron and his ventures (in particular, the Badgery's Creek Consortium, described in the following paragraph, and also the Lowes Creek Consortium, described at paragraph 27 below and following). 18. As a result of Ron's arrest, criminal charges and ICAC investigations, the other members of the Badgery's Creek Consortium have indefinitely suspended the activities of the consortium until such time as Ron or any entity associated with Ron is no longer owner of the Badgery's Creek Property. 19. The consortium and I have worked very hard to get the land Rezoned. In early 2008, the consortium sought the Ministers consent for its proposal for the site to be considered under Part 3A of the Environmental Planning and Assessment Act 1979 by making an application known as "Part 3A Application". However, shortly after the death of Michael McGurk and allegations being made that Mr McGurk had tape recordings of Ron and his dealings with the Department of Planning specifically relating to the Badgery's Creek Property, in September 2010, a parliamentary enquiry was convened. The allegations made against Ron at the parliamentary enquiry and the surrounding publicity has compromised my ability to deal with the Department of Planning, particularly in relation to the Badgery's Creek Property. 20. Since this time the Part 3A Application has not advanced and I have no confidence that it will be considered by the Department following the allegations against Ron. Since that time and as a result of changes in the planning laws in New South Wales, there is now a different process for approval, which means that an entirely new application must be made. 21. In addition, it has become apparent to me over recent time that the partnership between the Plaintiff and the Defendant cannot function. Ron and I do not have the same judgement or method of doing business. We are unable to agree on many things and we cannot work together or jointly fund a planning proposal to achieve rezoning of the Badgery's Creek Property. For those reasons, and also by reason of the matters set out below from paragraph 33 and following, the business relationship between us has irretrievably broken down such that we cannot work together and, in particular, cannot manage, develop, sell or rezone the property together. 22. I have over 40 years experience in property development including but not limited to the rezoning of land and dealing with Councils and other government authorities in order to achieve rezoning." 11Ms Cheeseman submits that Mr Roy Medich, by deposing to the matters in his 8 November 2013 affidavit, and in particular the last sentence of par 17 and the last sentence of par 19 of that affidavit, does not in terms assert that Mr Ron Medich is of bad character. 12However, what appears to be implicit in Mr Roy Medich's evidence is that allegations that have been made publicly about Mr Ron Medich have some relevance to the issues that the Court will be called upon to determine in these proceedings. 13It seems to me that whether or not the plaintiff proposes to seek to prove that Mr Ron Medich is, in fact, of bad character, the evidence Mr Roy Medich has put on raises that general topic. 14The particular passages of Mr Roy Medich's affidavit to which I have referred at [11] may be objected to and may not survive objection. I cannot predict what evidence Mr Roy Medich would seek to adduce, in admissible form, in relation to those matters in that event. 15What seems clear to me is that the general topic of Mr Ron Medich's reputation will be in issue in these proceedings. 16In those circumstances there is a "real and not merely notional danger of injustice" (per Wootten J in McMahon v Gould (1982) 7 ACLR 202 at 206) to Mr Ron Medich, were these proceedings to be heard before the criminal trial commences. 17As Mr Newlinds SC, who appears with Mr Sulan for the defendant, points out in his written submissions, there are obvious constraints on the extent to which Mr Ron Medich could deal with the question of his reputation such that it is unlikely that he could fairly deal with that issue in these proceedings before the criminal trial is resolved. 18It seems to me that it is almost inevitable these proceedings would attract media attention, especially if, as the plaintiff wishes, these proceedings are heard within a month or two of the commencement of Mr Ron Medich's criminal trial. In those circumstances, it appears to me that there is a real risk that such media attention could adversely affect the minds of jurors called upon to consider Mr Ron Medich's position in the criminal trial. It is well established that such a possibility is a matter that is relevant to the kind of issue that I must decide: Gypsy Fire v Truth Newspapers Pty Limited 1987) 9 NSWLR 382 at 387. 19It must be borne in mind that this is not a case where Mr Ron Medich is seeking a stay of the civil proceedings pending his criminal trial. Rather the counter-party to the civil proceedings is seeking to have the proceedings heard earlier than would otherwise be the case, with the avowed object of the proceedings being heard, and I presume, determined before the criminal trial commences. 20Ms Cheeseman suggested that any prejudice to Mr Ron Medich might be dealt with by suppression orders made out of the Court Suppression and Non-publication Orders Act 2010. I do not see how I could predict, at this stage, whether, and if so to what extent, any such order would cure such prejudice as might otherwise occur to Mr Ron Medich were these proceedings be heard before the criminal proceedings. 21In all those circumstances, I decline the application for expedition. 22I order that: (1)The plaintiff's notice of motion seeking expedition be dismissed with costs. (2)The matter be removed from the Expedition List. (3)The matter stand over before the Registrar on 20 May 2014.