Andonian v Spano

[2022] NSWDC 611

District Court

New South Wales

Medium Neutral Citation:	Andonian v Spano [2022] NSWDC 611
Hearing dates:	10 November 2022
Date of orders:	10 November 2022
Decision date:	10 November 2022
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	See par [14].
Catchwords:	CIVIL – NOTICE OF MOTION – APPLICATION TO STRIKE OUT DEFENDANT’S DEFENCE AND CROSS-CLAIM – Non-compliance by the Defendant with previous orders of this Court – Exercise of judicial discretion in accordance with the just, quick, and cheap disposal of civil proceedings.
Legislation Cited:	Civil Procedure Act 2005 (NSW)
Cases Cited:	Nil.
Texts Cited:	Nil.
Category:	Procedural rulings
Parties:	Plaintiff – Sarkis Andonian Defendant – John Spano
Representation:	Plaintiff – Mr Adelstein Defendant – Self-represented
File Number(s):	2020/00262504
Publication restriction:	Nil.

Judgment

1. HIS HONOUR: The current proceedings were commenced by a Statement of Claim filed on 9 September 2020 at 5.05pm. The proceedings are more than two years old. A Defence was filed to the Statement of Claim on 22 October 2020 at 4.27pm. An amended Defence was filed on 11 March 2021. In addition to filing his initial Defence, the Defendant filed a cross-claim on 22 October 2020. There is an Amended Statement of Cross-Claim filed on 11 March 2021 and a Defence to the Amended Statement of Cross-Claim was filed by the Cross-Defendant/Plaintiff on 15 April 2021.

2. As far as I can glean from the pleadings, on or about 7 March 2014, the Plaintiff and the Defendant entered into two agreements. One was for the sale by the Defendant to the Plaintiff of a business. The business, as I understand it, is a body works business/smash repairs. Prior to the agreement for the sale of the business, the business had been carried on by the Defendant and his wife under the name “John Spano Body Work”. On the same day, a lease was entered into by the Plaintiff to rent from the Defendant the property at which that business was being carried out, namely 3/27 King Road, Hornsby, New South Wales.

3. The lease was renewed on or about 8 March 2018 for a further period of three years, which was due to expire on 28 February 2021. According to the Defendant, the Plaintiff failed to pay rent and outgoings leading to communications from the Plaintiff through a solicitor to the Defendant on 15 April 2020 and 5 May 2020. According to the cross-claim, the cross claimant terminated the lease with effect on 21 May 2021. According to the Statement of Claim, the Defendant locked the Plaintiff out of the premises on the preceding day, 20 May 2020. There is not much to be gained by a difference of one day.

4. The Plaintiff alleges that because of his being locked out of the premises, the Plaintiff's property and personal effects were left on the premises and were, and are, the subject of the claim made in the Statement of Claim. That claim is in the torts of detinue and conversion. According to the Statement of Claim, the value of the detained chattels was $227,481.54, including five motor vehicles. A number of the items referred to in the Statement of Claim have not been assigned any value, rather, they have been marked "TBA" meaning “to be advised”. The items not so valued are chairs, tables, an office work desk, a combined wall unit and cupboard, an air conditioning unit and a fan unit, chairs and a water machine in the foyer, and a door cabinet filled with papers and other items belonging to Wallaby Crash Supplies. A stock cabinet was empty when picked up by the suppliers on 15 June 2020. There were also parts stored for customer vehicles, including two windscreens for a Holden Torana, and two windscreens for a Toyota Celica.

5. The cross-claim claims damages for breach of the lease including monies that ought to have been paid under the lease, and other outgoings as well as the rent that would have been paid had the lease not been terminated and, according to the Amended Cross-Claim, the costs of removal of rubbish left in the premises by the Plaintiff, and the cost and removal and disposal of items left in the premises by the Plaintiff.

6. The defence to the Amended Cross-Claim pleads in [15] this:

"As to paragraph 9 the Cross Defendant says he was locked out of the premises and therefore did not have the opportunity and did not remove any of his property and says that the Cross Claimant has wrongfully retained possession of the Cross Defendant's property has failed and refused to allow the Cross Defendant to recover its property. The Cross Defendant denies the Plaintiff is entitled to claim the cost of removal of goods and/or the cost of making good."

7. The Defendant has, at some times, been legally represented, and at other times he has not. The last solicitor acting for him filed a notice of ceasing to act on 2 November this year. The matter came on for hearing before his Honour Montgomery DCJ on 26 July 2022. Notes made by his Associate tell me this:

"Matter opened at 10.09am.

Morning adjournment at 11.43am.

Matter resumed approximately 11.15am [sic].

Matter adjourned at 12.40pm.

Matter resumed 12.50pm.

Luncheon adjournment at 1.20pm.

Matter resumed at 2.50pm.

Matter concluded 4.12pm."

His Honour made a number of orders. Inter alia he disqualified himself from the further hearing of the matter on the basis of bias, as I understand it, apprehended by the Defendant. The first three orders made by his Honour are these:

"1. On 17 August 2022 at 9:30 AM, the parties are to attend at premises 3/27 King Road, Hornsby NSW to carry out an inspection of any goods, remaining on the premises claimed by the Plaintiff in paragraph 5 of the Statement of Claim only

a. Pursuant to Uniform Civil Procedure Rules 31.37 the parties are to agree a single expert on or before 2 August 2022 and failing agreement, as selected by the president of the Auctioneers and Valuers Association of Australia.

b. The parties are to share the cost of the single expert.

c. At and during the inspection the plaintiff and the defendant are not to speak with or contact each other directly or by means other than through their legal representatives and in the event that the defendant/cross claimant is not legally represented, then between him and Mr Adelstein, solicitor, who has undertaken to be present.

d. At no point are the parties to come within three meters of each other.

2. At such time, as set out in order 1, the parties and expert witness as to valuation of the goods and the legal representatives of the parties, are to be permitted to attend and enter the premises to identify any of the goods, claimed by the plaintiff in paragraph 5 of the Statement of Claim in these proceedings, to determine and describe the condition of such goods and to facilitate a valuation

a. The expert witness is to photograph each item and include a photograph of each item in his/her report.

3. Pursuant to UCPR 31.40, on or before 6 September 2022, the expert witness who has attended the premises pursuant to orders 1 and 2 above is to deliver to the parties an expert report for the purposes of identification, description and valuation of the goods claimed by the plaintiff in paragraph 5 of the Statement of Claim located on the premises.”

8. His Honour went on to list the matter for further directions before the Judicial Registrar on 13 September 2022. I have been told from the Bar table that on 26 July 2022 the Defendant told his Honour that his email address was [email protected]. Mr Edelstein, the solicitor for the Plaintiff sought to communicate with the Plaintiff at that email address. However, there appears to have been a misunderstanding. The Defendant told me today that his email address is [email protected]. Mr Edelstein for the Plaintiff sought to communicate with the Defendant on Wednesday 3 August 2022, and on Thursday 11 August 2022 concerning the appointment of an independent valuer. The one identified through his inquiries but not appointed pursuant to the order made by his Honour, which appears to have been otiose, because it was incapable of being fulfilled because of a declining by the President of the Auctioneers and Valuers Association of Australia to suggest the name of an expert, was Mr Chris Capraro of Hymans Valuers and Auctioneers, and he would be assisted by Mr Cameron Stewart of the same company. Despite the plaintiff’s, Mr Edelstein’s, Mr Capraro’s and his assistant’s turning up at the appointed day at the appointed hour access was not granted to the premises by the defendant.

9. The plaintiff filed a notice of motion on 18 August seeking again for an order similar to that made by Montgomery DCJ on 26 July 2022. In the alternative the plaintiff moved the Court to strike out the defendant's defence and permit the plaintiff to enter judgment "accordingly". The judgment would merely be for damages to be assessed. The defendant politely today says that he would not permit under any circumstances Mr Edelstein from entering his premises, making serious unsubstantiated allegations against him. Mr Edelstein very properly and gentlemanly agreed that he need not be there, albeit that he has been the solicitor with carriage of the plaintiff's claim from the beginning and that he could arrange for another lawyer to attend in his place. However, it is imperative that the plaintiff himself attend the premises to identify to the expert what items of his are still on the premises and to describe to him whether they are in the same condition now as they were when he was locked out on 20 May 2020. However, the defendant, making serious, unsubstantiated allegations against the plaintiff, will not permit him to enter his premises.

10. It is clear, as Mr Edelstein has submitted, that Montgomery DCJ sought to have a single expert appointed to be the Court appointed expert, and that his costs be shared by the parties, and the Court would use that single expert in order to reach its decision. It appeared to me that I should not appoint such a person as the Court expert, but rather appoint the person identified by the Plaintiff as an expert to produce an expert report after appropriate inspection. The cost of that would be the Plaintiff's cost, but ultimately the cost of the inspection, the obtaining of the expert's report, would be costs in the cause. That would facilitate the process occurring. There is a report obtained by the Defendant some time in the past, as to the value of goods that were left on the premises. I am told that there was some form of report made by a panel beater or somebody in the body work industry that is not an expert's report at all, and may not be able to be used by the Plaintiff to value the items claimed properly.

11. The first three subparagraphs of s 56 of the Civil Procedure Act 2005 are these:

“(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court, and when it interprets any provision of this Act or of any such rule.

(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.”

12. In these proceedings, subparagraph (3) is of prime concern. The Defendant has, by his conduct before me, indicated that he will not cooperate with the Court and the Plaintiff in order to bring these proceedings ultimately to conclusion. He maintains steadfastly that the Plaintiff's claim is a concoction, that documents have been forged, and that the lawyers acting for the Defendant have committed serious professional misconduct. There is currently no evidence to support any such accusations.

13. However, the Defendant clearly will not facilitate the obtaining of evidence that his Honour Montgomery DCJ thought would be crucial to the outcome of the proceedings, and I can understand might be crucial to the outcome of the proceedings. The only alternative that can arise is, in my view, the relief sought in the alternative by the Plaintiff.

14. For these reasons, pursuant to the 5th prayer for relief in the notice of motion filed on 18 August 2022, I strike out the Defence filed by the Defendant to the Statement of Claim and I strike out the Defence filed by the Defendant to the Amended Statement of Claim, and I dismiss the cross-claim brought by the cross-claimant. The parties are to approach the Judicial Registrar to obtain a hearing date for the assessment of the Plaintiff's damages. I order the Defendant to pay the Plaintiff's costs of the Notice of Motion filed on 18 August 2022.

Decision last updated: 07 December 2022