District Court New South Wales Medium Neutral Citation: Logan Real Estate Pty Limited v Yellow Brick Road Property Pty Limited [2015] NSWDC 441 Hearing dates: 24 August 2015 Date of orders: 24 August 2015 Decision date: 24 August 2015 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Defendant's application to adjourn today's hearing of the plaintiff's notice of motion (filed 7 August 2015) and the defendant's amended notice of motion (filed 13 August 2015) granted, vacate the hearing of the motions and adjourn them to Friday, 25 September 2015 at 10am for hearing before P Taylor SC DCJ. (2) By consent, order the solicitor of each party to advise their client in writing by 11 September 2015 of: (a) The solicitor's estimated amount of the costs payable in the proceedings by the client to the client's solicitor for the conduct of the proceedings. (b) In the event that the party is successful in the proceedings: (i) The solicitor's estimate of the amount of the judgment; and (ii) The solicitor's estimate of the amount of costs recoverable from the other party. (c) In the event that the party is unsuccessful in the proceedings: (i) The solicitor's estimate of the amount of the judgment; and (ii) The solicitor's estimate of the amount of the costs payable by the client to the other party. (3) By consent, direct the parties to engage in a formal mediation. (4) Order the mediation be conducted by 18 September 2015. (5) In the event that consent orders are filed in the registry settling the matter by noon on 24 September 2015 then the hearing date for the motions to be vacated. (6) Liberty to mention the matter before P Taylor SC DCJ on 48 hours' notice. (7) Reserve all costs connected with today. Catchwords: PROCEDURE – adjournment – terms – mediation – preferability of early mediation Category: Procedural and other rulings Parties: Logan Real Estate Pty Limited (plaintiff) Yellow Brick Road Property Pty Limited (defendant) Representation: Counsel: Mr A Di Francesco (plaintiff) Solicitors: Hegarty Legal (plaintiff) Baybridge Lawyers (defendant) File Number(s): 2014/163124 Publication restriction: None Judgment 1. There are two motions before me. The plaintiff, Logan Real Estate Pty Ltd, seeks further discovery. The defendant, Yellow Brick Road Property Pty Ltd, seeks to strike out certain paragraphs of the plaintiff's statement of claim and also to set aside certain subpoenas and notices to produce. 2. The claim arises out of an agreement between two real estate agents and centres on whether the appropriate reward for the plaintiff under the agreement was 65% or 60% of the net commission. As only 5% is in dispute, the claim is for a relatively modest amount. 3. At the commencement of the hearing, the solicitor for Yellow Brick Road applied for an adjournment as counsel had become ill. The illness is not disputed, nor is the need for an adjournment so long as the plaintiff's convenience for an adjourned date is considered. The parties are agreeable to a formal mediation being conducted. However, Yellow Brick Road seeks that the mediation be heard before more costs are incurred in the determination of the motions whereas Logan Real Estate seeks that the mediation occur after the determination of the motions, when it supposes more documents would become available for it to view. Given the size of the claim, the costs, the nature of the claim involving written agreements which are available to both parties, and the circumstance that the affidavits have been served and thus, the respective cases have been disclosed, an early date for mediation is preferable. 4. Accordingly, the orders of the Court are: 1. Defendant's application to adjourn today's hearing of the plaintiff's notice of motion (filed 7 August 2015) and the defendant's amended notice of motion (filed 13 August 2015) granted, vacate the hearing of the motions and adjourn them to Friday, 25 September 2015 at 10am for hearing before P Taylor SC DCJ. 2. By consent, order the solicitor of each party to advise their client in writing by 11 September 2015 of: 1. The solicitor's estimated amount of the costs payable in the proceedings by the client to the client's solicitor for the conduct of the proceedings. 2. In the event that the party is successful in the proceedings: 1. The solicitor's estimate of the amount of the judgment; and 2. The solicitor's estimate of the amount of costs recoverable from the other party. 1. In the event that the party is unsuccessful in the proceedings: 1. The solicitor's estimate of the amount of the judgment; and 2. The solicitor's estimate of the amount of the costs payable by the client to the other party. 1. By consent, direct the parties to engage in a formal mediation. 2. Order the mediation be conducted by 18 September 2015. 3. In the event that consent orders are filed in the registry settling the matter by noon on 24 September 2015 then the hearing date for the motions to be vacated. 4. Liberty to mention the matter before P Taylor SC DCJ on 48 hours' notice. 5. Reserve all costs connected with today. ********** 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: 13 August 2018