Supreme Court New South Wales Medium Neutral Citation: Shree Shirdi Sai Sansthan Sydney Ltd v Taluja [2014] NSWSC 1673 Hearing dates: 19 November 2014 Decision date: 19 November 2014 Jurisdiction: Equity Division - Duty List Before: Stevenson J Decision: Application dismissed with costs Catchwords: PRACTICE AND PROCEDURE - hearing - application to vacate hearing date - whether failure to adduce expert evidence in reply and desire to prosecute an appeal in related proceedings constituted adequate bases to vacate hearing dates Cases Cited: Taluja v Orford & Anor [2014] NSWSC 714 Category: Interlocutory applications Parties: Shree Shirdi Sai Sansthan Sydney Limited (Respondent/Plaintiff) Dr Nirmal Taluja (Applicant/Defendant) Representation: Counsel: D H Murr SC with L S Einstein (Respondent/Plaintiff) K Smark SC (Applicant/Defendant) Solicitors: Rickards Consulting Pty Ltd (Respondent/Plaintiff) Warren McKeon Dickson (Applicant/Defendant) File Number(s): SC 2010/375468 EX TEMPORE Judgment (revised) 1On 10 June these proceedings were fixed for hearing before me for five days commencing on 8 December 2014; a little under three weeks from now. 2By Notice of Motion filed in Court today, although foreshadowed several days ago, the defendant, Dr Taluja, seeks to vacate the hearing. 3Dr Taluja is the registered proprietor of property at Strathfield ("the Property"). The Property comprises two lots. On one of the lots is a chapel. The plaintiff ("Shree") is a religious organisation that has been in occupation of the Property since at least 2003. 4In 2003, Dr Taluja and Shree executed a "lease document" under which Dr Taluja leased part of the Property, including the chapel, to Shree for 30 years 5The lease contained an option to purchase the land. Shree purported to exercise the option and contends that Dr Taluja has wrongfully refused to carry out the necessary subdivision to transfer the land to Shree. 6Shree claims specific performance of the option to purchase; alternatively, damages. 7In response, Dr Taluja contends that the lease is void for uncertainty, void ab intio, has been terminated and has been frustrated. Dr Taluja has also filed a cross-claim seeking, amongst other things, rectification of the lease to accord with what she contends to be "the agreed terms". 8Dr Taluja advances two bases for an adjournment, only one of which was pressed with vigour by Mr Smark SC, who appeared for her. 9The first basis is to enable Dr Taluja to serve expert evidence in reply to that served by Shree. That expert evidence was served in or about February or March of this year. 10Dr Taluja has not sworn an affidavit in support of her application and has not herself given any explanation for her failure to adduce expert evidence in reply to that served by Shree. 11The only evidence adduced for Dr Taluja is that of her solicitor, Mr Groundwater. Mr Groundwater has been Dr Taluja's solicitor since 5 November 2014 (that is, for exactly two weeks). Mr Groundwater says that Dr Taluja's previous solicitor ceased to act on 5 November 2014 due to "funding issues". Those "funding issues" have not been identified. Apart from what I refer to below, there is no evidence before me as to Dr Taluja's financial position. 12Mr Groundwater says Dr Taluja's ability to fund proceedings has been hindered by the caveat that Shree has placed on the title of the Property. The implication seems to be that the caveat has had the effect that Dr Taluja could not obtain a refinance of her mortgage over the Property that otherwise would be available to her. 13There is no evidence at all before me as to what has transpired, if anything, between Dr Taluja and her mortgagee. 14In any event, Shree's solicitor has given evidence of an "open offer" by Shree to endeavour to accommodate such means as Dr Taluja had to raise further funds on the security of the Property. The precise nature of that offer is not before me. There is no contest that Dr Taluja did not take up whatever offer was made. 15In my opinion this evidence does not provide an adequate explanation for Dr Taluja's lack of preparedness and does not of itself provide a basis to adjourn the proceedings. 16Indeed, Mr Smark, with his usual candour, stated that he could not submit that Dr Taluja is not able to proceed on 8 December 2014. 17The second reason for the adjournment, on which Mr Smark placed most emphasis, is that Dr Taluja wishes to prosecute an appeal against a decision given by Slattery J on 3 June 2014 in other proceedings and to have these proceedings deferred until the outcome of that appeal is known. 18In those other proceedings (which I will call "the Solicitor Proceedings"), Dr Taluja seeks damages from two solicitors who she says acted for her in relation to the transaction which led to the lease the subject of these proceedings. Dr Taluja contends that if Shree, in these proceedings, establishes that it has exercised a valid option to purchase the Property, and is otherwise successful, and Dr Taluja thereby suffers damages, such damage has been caused by those solicitors' breach of professional duty. Dr Taluja wishes to have her claim in the Solicitors Proceedings incorporated as a cross-claim in these proceedings. 19Much is to be said for that course. Both these proceedings, and the Solicitors' Proceedings, will involve a detailed consideration of circumstances leading up to execution of the lease. Further, one of the solicitors is, I am told, to give evidence for Shree in these proceedings in support of Shree's case. Thus, it is likely that in both these proceedings, and the Solicitors' Proceedings, there will be three witness (Dr Taluja and the two solicitors) who will give evidence and be cross-examined about much the same circumstances. 20Doubtless, for this reason, in the Solicitors Proceedings, Dr Taluja brought an application that that claim be incorporated into these proceedings as a cross-claim. 21The complicating factor is that the solicitors brought an application to have Dr Taluja's proceedings dismissed as being out of time. Slattery J heard both applications in March this year, and on 3 June 2014 found that Dr Taluja's proceedings were brought out of time and should be dismissed (See: Taluja v Orford & Anor [2014] NSWSC 714). 22As I mentioned, these proceedings were set down for hearing on 10 June 2014, that is seven days after Slattery J delivered his judgment. 23On 30 June 2014, Dr Taluja filed a Notice of Intention to Appeal but did not file a Notice of Appeal setting out the basis upon which she challenged Slattery J's orders until 2 September 2014. Notwithstanding the fact that Dr Taluja was aware of the hearing date and aware of the desirability of having her claim in the Solicitors Proceedings heard at the same time as these proceedings, she took no steps to seek to have the appeal expedited. Had she promptly, after delivery of Slattery J's judgment on 3 June 2014, filed a Notice of Grounds of Appeal, and made an application to the Court of Appeal for expedition, I have little doubt that the Court of Appeal would have done its best to accommodate the hearing and the disposition of her appeal against Slattery J's judgment prior to now. 24As it is, Dr Taluja seeks to have the hearing date vacated so she can prosecute the appeal. Mr Smark informed me that Dr Taluja's submissions are likely to be filed and served in early December 2014 and that Dr Taluja will then apply to have the appeal expedited. Nonetheless, Mr Smark accepted, the appeal is not likely to be heard before the middle of next year. 25This leaves Shree and the Court in a highly unsatisfactory position which, in my opinion, is entirely of Dr Taluja's own making. 26It is true that if the appeal is allowed and Dr Taluja is free to pursue her claim against the solicitors after the hearing of this case by me, a different judge will have to adjudicate Dr Taluja's case, which arises out of the same facts as those that will be before me. That is an unsatisfactory situation. The possibility arises of different judges coming to different conclusions about the same facts and the same witnesses. That is a factor to be weighed in the balance. 27On the other hand, the Court has an interest in preserving the date allocated for hearing, especially when the date was allocated six months in advance. Other litigants could have had their matter heard in the week commencing 8 December 2014. It is highly unlikely that any other substantial matter can be listed for hearing during that week at this late stage. 28There is also the prejudice to Shree if the hearing is vacated. These proceedings were commenced in 2010. They have already been listed for hearing on one occasion in February 2013 (although that date was vacated at Shree's consent). 29Shree is a religious organisation, and its parishioners have an interest in knowing, finally, whether they are going to have continued occupation of the Property. On the other hand, it is true, as Mr Smark submitted, that Shree has remained in occupation of the property since 2003 and had the benefit of the undertakings from Dr Taluja that she will not seek to interfere with that occupation until those proceedings are heard. 30Further, if the matter is adjourned, Shree will lose the services of junior counsel, Mr Einstein, who has been deeply involved in the case from the outset. That is because, from next year, Mr Einstein will cease full time practice at the bar to pursue a course of study. Mr Einstein is to be led by Mr Murr at the hearing. Nonetheless, if the hearing date were vacated, Shree would incur the expense, and perhaps unquantifiable detriment, in having to obtain fresh junior counsel. 31In all the circumstances I am not persuaded I should vacate the hearing date. 32Dr Taluja's application is dismissed with costs. ********** 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: 25 November 2014