Supreme Court New South Wales Medium Neutral Citation: Medi-Aid Centre Foundation Ltd v Joys Child Care Ltd [2017] NSWSC 1463 Hearing dates: 11 October 2017 Decision date: 11 October 2017 Jurisdiction: Common Law Before: McCallum J Decision: Defendant's application to adjourn the hearing date refused; leave granted to the defendant to issue a subpoena to the Department of Education for the documents he seeks to recover; hearing date of 27 October 2017 confirmed; defendant to pay the plaintiff's costs of today's application Catchwords: CIVIL PROCEDURE – application to vacate hearing date – no question of principle Category: Procedural and other rulings Parties: Medi-Aid Centre Foundation Ltd (plaintiff) Joys Child Care Ltd (defendant) Representation: Counsel: M Sheldon (plaintiff) J Shang (self-represented) (defendant) Solicitors: Storey & Gough Lawyers (plaintiff) File Number(s): 2017/101154 Publication restriction: None JUDGMENT 1. HER HONOUR: This is an application by Joys Child Care Ltd, the defendant in proceedings for possession, to have a hearing date vacated. The application is brought by notice of motion filed 4 October 2017 and supported by an affidavit of Mr Jan Shang, the principal of the company, sworn the same date. 2. The basis for the application is, in short, that, on the very day the defendant's evidence in the proceedings was due, the Department of Education executed a search warrant at the premises the subject of the proceedings and removed computers and files which Mr Shang alleges contained the evidence he proposed to file and serve that day. The evidence Mr Shang says was contained on the computer was a calculation of the amount of money he has spent or the company has spent on the premises. 3. The defence to the plaintiff's claim, as I understand it, will be that the amount of money the defendant has expended improving the premises well exceeds the amount of outstanding rent. 4. The plaintiff alleges, and it appears to be common ground, that the defendant has paid no rent since the commencement of the lease in early 2015. The current outstanding rent is alleged to be in the order of some $500,000. Whether the expenditure of any funds by the defendant will constitute a proper defence to the claim for that outstanding rent and the plaintiff's entitlement to possession of the proceedings is properly a matter for trial. 5. The evidence sworn by Mr Shang today to establish the complaint that he has been unable to file and serve his evidence owing to the execution of the search warrant, to which I have referred, is inadequate for the purpose of persuading the Court to vacate a hearing date. It does not, as observed in the submissions for the plaintiff, identify what evidence was supposed to have been prepared and why it cannot be collated from other sources. 6. There is some sparse evidence as to attempts taken by Mr Shang to recover missing documents from the Department of Education, but that also does not address any concerns as to why Mr Shang cannot be ready for a hearing on 27 October 2017. 7. There is one ray of hope for Mr Shang, which is a letter or email from the Department of Education suggesting that, if he wishes to obtain documents from the department for the purposes of Court proceedings, he should do so by subpoena. 8. What I propose today is to refuse the application for want of evidence but to grant leave to Mr Shang to issue a subpoena to the Department of Education for the documents he seeks to recover. He requires leave because the defendant is unrepresented in the proceedings. In the meantime, the application to vacate the date is refused and the hearing date of 27 October 2017 is confirmed. 9. I order the defendant to pay the plaintiff's costs of the application ********** 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: 27 October 2017