Australian Eastern Olive Oil v Manbead

[2008] NSWSC 620

CITATION:	Australian Eastern Olive Oil v Manbead [2008] NSWSC 620
HEARING DATE(S):	18 June 2008
JUDGMENT OF:	Gzell J
EX TEMPORE JUDGMENT DATE:	18 June 2008
DECISION:	Hearing vacated. Plaintiff ordered to pay defendant's costs thrown away by the adjournment.
CATCHWORDS:	PROCEDURE - Miscellaneous procedural matters - Adjournments - Application to vacate hearing at late stage - In suit for specific performance of contracts of sale of land from defendant to plaintiff, plaintiff sought to call defendant's real estate agent - Evidence not outlined to defendant - Defendant required matters to be investigated - Civil Procedure Act 2005, s 57 and Queensland v J L Holdings Pty Ltd (1996-1997) 189 CLR 146
LEGISLATION CITED:	Civil Procedure Act 2005
CASES CITED:	Queensland v JL Holdings Pty Ltd (1996-1997) 189 CLR 146
PARTIES:	Australian Eastern Olive Oil Co Pty Ltd - (Plaintiff) Manbead Pty Ltd - (Defendant)
FILE NUMBER(S):	SC 4358/06
COUNSEL:	Mr G McGrath (Plaintiff) Mr D Pritchard SC/ Mr E Muston (Defendant)
SOLICITORS:	Robert Webley & Associates (Plaintiff) Hansons Lawyers (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

WEDNESDAY 18 JUNE 2008

4358/06 AUSTRALIAN EASTERN OLIVE OIL CO PTY LTD v MANBEAD PTY LTD

EX TEMPORE JUDGMENT

1 The plaintiff, Australian Eastern Olive Oil Co Pty Ltd, sought to call evidence under subpoena from Mr Casarotto, the real estate agent of the defendant, Manbead Pty Ltd, in the sale of land by Manbead to Australian Eastern.

2 Mr Casarotto's evidence had not been outlined to Manbead’s legal advisers beyond a short statement in Australian Eastern’s outline of argument indicating that he was subpoenaed to attend to give evidence of one conversation.

3 Counsel on both sides having spoken with Mr Casarotto, it is clear from the submissions made to me that he is a material witness in Australian Eastern’s case.

4 It is also clear from what has been said by Manbead’s counsel that there is a dispute with respect to evidence that Mr Casarotto may give of a number of conversations. That dispute leads to a question of Mr Casarotto’s credit, the need to explore telephone records that are said to contradict portion of his evidence, and the need to interview tenants with whom both Mr Casarotto and Vito Pennimpede, a director of Manbead, had spoken.

5 No explanation has been given for the lateness of the communication that evidence would be called from Mr Casarotto or the paucity of that communication.

6 The Civil Procedure Act 2005, s 56 states that the overriding purpose of the Act and the rules is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Section 57 gives the court extensive powers with respect to the management and efficiency of court proceedings generally when dealing with applications such as that made, that the hearing be vacated. It provides that for the purpose of furthering the overriding purpose, proceedings are to be managed having regard to the just determination of the proceedings, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources, timely disposal of the proceedings and all other proceedings in the court at a cost affordable by the respective parties.

7 Notwithstanding the width of that provision, I am of the view that the principle enunciated in Queensland v JL Holdings Pty Ltd (1996-1997) 189 CLR 146, that it is the justice of the matter that ought to determine a judicial officer's exercise of discretion when an application such as this is made, remains a matter of significance.

8 As I have said, Mr Casarotto is a material witness for Australian Eastern. It should not, in my view, be denied the opportunity to present its case with the advantage of the evidence of Mr Casarotto.

9 Notwithstanding, therefore, the lateness of the notice that the evidence would be adduced and the unexplained manner of its proposed tender, I propose to accede to the application of Australian Eastern for an adjournment.

10 Australian Eastern does not cavil with the proposition, rightly in my view, that the adjournment must be on the basis that it pays Manbead’s costs thrown away by the adjournment.

11 I vacate the hearing before me. I close the ECM Court. I order the plaintiff to pay the defendant’s costs thrown away by the adjournment. I refer these proceedings for mediation. If the parties cannot agree on a mediator within 7 days, the Joint Protocol described in Practice Note SC Gen 6 shall apply and the mediator shall be the person appointed under the Joint Protocol. I stand the matter over before the Registrar at 9.30 am on the Thursday morning following the conclusion of the mediation.

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