District Court New South Wales Medium Neutral Citation: Ezzy Architects Pty Ltd v 262 Pennant Hills Road Pty Ltd; Ezzy Architects Pty Ltd v WG Property Group Pty Ltd [2015] NSWDC 439 Hearing dates: 1 October 2015 Date of orders: 01 October 2015 Decision date: 01 October 2015 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Vacate the hearing of the matter listed today. (2) Order that the plaintiff's costs of, and incidental to, the application for adjournment be the plaintiff's costs in the proceedings. (3) Grant leave to the plaintiff, should it be so minded, to apply for a different order in respect of those costs at any time up to, and including, the disposal of the costs of the proceedings. (4) List the matter for directions on Friday, 2 October 2015 at 9.30am before the list judge to obtain an early, new hearing date. Catchwords: PROCEDURE – adjournment – vacation of hearing dates – illness of witnesses – late notice – costs Legislation Cited: Building and Construction Industry Security of Payment Act 1999 Category: Procedural and other rulings Parties: 2014/180076: Ezzy Architects Pty Ltd (ACN 001 856 999) (plaintiff) 262 Pennant Hills Road Pty Ltd (ACN 162 161 640) (defendant) 2014/180087: Ezzy Architects Pty Ltd (ACN 001 856 999) (plaintiff) WG Property Group Pty Ltd (ACN 163 907 800) (defendant) Representation: Counsel: Mr S Goldstein (plaintiff) Mr D O'Connor (defendants) Solicitors: Colin Biggers & Paisley (plaintiff) Collins & Thompson (defendants) File Number(s): 2014/180076; 2014/180087 Publication restriction: None Judgment 1. The defendants make an application for vacation of the hearing dates on the basis of the ill health of two witnesses; their project manager and their director, respectively, Patrick Giang and Duong William Giang. 2. The plaintiff architect does not dispute that both of these persons are important witnesses in the proceedings set down for hearing today. 3. The evidence of sickness is largely in a hearsay form. The solicitor for the defendants has quoted Mr Patrick Giang as telling him that he had "been really sick for about three weeks now" and that he had been receiving increasing dosages of antibiotics and was "just not getting better," and was said to have been told by the doctor, "I should be getting bed rest." There is a medical certificate dated yesterday from a doctor that says that Mr Giang is "suffering from acute bronchitis and is on medication for this condition" and that he is "unfit to attend court 1‑2/10/2015". 4. As to William Giang, the evidence is less satisfactory given that it is second hand hearsay. The solicitor quotes Patrick Giang as telling him that William Giang is "very sick", having "heart problems from stress," and that he was admitted to hospital four months ago for a couple of days and also two weeks ago. Perhaps there is some third hand hearsay, "Two days ago my mother took him back to the doctor because of his heart". 5. The only medical certificate in respect of William Giang, apparently also known as Duong Giang, is from the Sydney Adventist Hospital confirming that he attended the hospital with chest pain on 11 September 2015 at 5.30pm and "there was no evidence of acute ischemic heart disease," and that he was discharged at 11pm that evening. 6. The defendants say that, subject to the health of these two witnesses, they are ready to proceed with the hearing. They refer to a previous occasion in July where the hearing date was vacated, in part at least, because of an amendment to the plaintiff's claim. 7. The plaintiff opposes the adjournment on the basis that it is possible for the plaintiff's evidence to proceed today in the absence of the witnesses or the defendants. This is resisted by the defendants on the basis that there are no representatives of the defendant companies who can give instructions in relation to the matter. 8. Although the matter is close to the line, there is at least the prospect that in cross‑examination the plaintiff's witnesses may give answers which require instructions to be given. I think that the fairer course is to vacate the hearing of the matter and enable a new, early hearing date to be obtained. 9. As the matter concerns the obtaining of orders for payment of moneys under the Building and Construction Industry Security of Payment Act 1999, the primary issue is to be whether there was a "construction contract," or indeed any contract, between the parties. 10. With the consent of the parties, I will list the matter tomorrow before the duty judge for the obtaining of a new hearing date. 11. In respect of costs, ordinarily I would not be minded to grant costs orders in favour of the plaintiff arising merely from the sickness of the defendants' witnesses. But there is another aspect of this application which cannot be attributed solely to the misfortune of ill health. The evidence shows that both the witnesses had been sick for some time and yet notice of the application was only given this morning, relying upon an affidavit sworn and served this morning. The defendants accepted that this procedure was "less than optimal". In my view, early correspondence about the problem may have mitigated some of the costs incurred by the plaintiff. The defendants conceded, somewhat reluctantly, that perhaps the plaintiff's orders should be made in respect of the plaintiff's costs. 12. I propose to order that the plaintiff's costs of and incidental to the application for vacation be the plaintiff's costs in the proceedings and grant leave to the plaintiff, should it be so minded, to apply for a different order in respect of those costs at any time up to and including the disposal of the costs of the proceedings. 13. The orders of the Court are: 1. Vacate the hearing of the matter listed today. 2. Order that the plaintiff's costs of, and incidental to, the application for adjournment be the plaintiff's costs in the proceedings. 3. Grant leave to the plaintiff, should it be so minded, to apply for a different order in respect of those costs at any time up to, and including, the disposal of the costs of the proceedings. 4. List the matter for directions on Friday, 2 October 2015 at 9.30am before the list judge to obtain an early, new hearing date. ********** 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: 10 August 2018