Carmelo Adriano Mastronardo –v- Commonwealth Bank of Australia trading as BankWest [Adjournment Application]

[2017] NSWSC 1020

Supreme Court

New South Wales

Medium Neutral Citation:	Carmelo Adriano Mastronardo –v- Commonwealth Bank of Australia trading as BankWest [Adjournment Application] [2017] NSWSC 1020
Hearing dates:	7 July 2017
Decision date:	07 July 2017
Jurisdiction:	Equity - Commercial List
Before:	Hammerschlag J
Decision:	Application to vacate the hearing dismissed
Legislation Cited:	Civil Procedure Act 2015
Category:	Procedural and other rulings
Parties:	Carmelo Adriano Mastronardo - First Plaintiff Claudia Alejandra Mastronardo - Second Plaintiff West Ryde Developments Residential Pty Ltd - Third Plaintiff Commonwealth Bank of Australia trading as BankWest - Defendant
Representation:	Counsel: R.S. Angyal SC - Plaintiffs M. Dempsey SC - Defendant   Solicitors: Tomaras Lawyers - Plaintiffs Norton Rose Fulbright Australia - Defendant
File Number(s):	2014/86502

ex tempore Judgment

1. HIS HONOUR:   This is an application by the plaintiffs to vacate a trial fixed to commence on 17 July 2017, on an estimate of twelve hearing days. These proceedings were commenced by the plaintiffs in 2014. The trial was originally set down (on 6 May 2016) for hearing to commence on 27 February 2017.

2. On the application of the plaintiffs, on 10 February 2017, I vacated that hearing date. I granted the plaintiffs leave to file a further amended statement of claim, and to make an application for disclosure. I gave them leave to file and serve further evidence by 19 May 2017. The plaintiffs were ordered to pay the costs thrown away by the adjournment and they were required to pay into court the sum of $30,000 on account. I made orders for the defendant/cross-claimant to file and serve any further evidence and for the plaintiff to file and serve evidence-in-reply. I made appropriate guillotine orders. I also set the hearing down to commence on 17 July 2017 on an estimate of twelve days, and made the usual order as to hearing. The plaintiffs changed solicitors on 4 July 2017.

3. Today, the plaintiffs once more make an application to vacate the hearing date, but this time on the sole basis (set out in the affidavit of Adriano Mastronardo sworn 5 July 2017, which was filed and read on an application for short service, which was made yesterday of this motion) ) that a representative action has been commenced in the Court for relief against the defendant. They suggest that they are class members and they may wish to join in those proceedings. Those proceedings are listed for directions before Sackar J on 4 August 2017 and they seek to have these proceedings stood over before his Honour on that occasion.

4. Senior Counsel for the defendant foreshadowed an argument that the plaintiffs are not within the class, but it is not necessary to deal with that issue.

5. It is noteworthy that the defendant has a significant alleged cross-claim for debt secured over various properties on which, because of these proceedings, it has not been able to execute (in the event that it is held entitled to the debt on which it relies and for which it sues in its cross-claim).

6. No good basis has been shown why the plaintiffs should not proceed on 17 July 2017, and even less so, `one warranting the vacation of the date so far as the defendant’s cross-claim for its significant debt is concerned. There is no suggestion that the case is otherwise not ready for hearing.

7. I cannot see why the plaintiffs should be entitled to vacate this hearing, or indeed why they would legitimately wish to do so, when their claim is ready to be heard, significant resources (including judicial resources) have been devoted and committed to it, and there is no suggestion that they will not be ready.

8. Section 56 of the Civil Procedure Act 2015 requires the true issues in the case to be determined justly, quickly and cheaply. To vacate the hearing in this case would, in my opinion, be inimical to each of those requirements.

9. The application to vacate the hearing is accordingly dismissed.

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Decision last updated: 11 August 2017