Carydis v Merrag Pty Ltd

[2007] NSWSC 1219

CITATION:	Carydis v Merrag Pty Ltd [2007] NSWSC 1219
HEARING DATE(S):	19 - 20 September 2007
JURISDICTION:	Equity Division Expedition List
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	20 September 2007
DECISION:	Leave refused to read affidavit. Adjournment refused, on basis that issue to which late affidavit relates will be subject of separate deferred determination if necessary
CATCHWORDS:	PROCEDURE – affidavit evidence – served late – no opportunity to test. - PROCEDURE – Adjournment – to permit opposing party to investigate late affidavit so that it might be read – where issue to which affidavit relates may not be relevant or decisive.
LEGISLATION CITED:	(NSW) Civil Procedure Act 2005
CASES CITED:	State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
PARTIES:	Spero Danis Carydis (first plaintiff) Helen Travassaros (second plaintiff) Merrag Pty Limited (defendant)
FILE NUMBER(S):	SC 3001/07
COUNSEL:	Mr F Kunc v Mr C Bova (plaintiffs) Mr G Moore (defendant)
SOLICITORS:	Gadens Lawyers (plaintiffs) DTA Lawyers (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Thursday, 20 September 2007

3001/07 Spero Danis Carydis v Merrag Pty Ltd

JUDGMENT (ex tempore) (on application for leave to read affidavit of Spero Danis Carydis sworn 20 September 2007)

1 HIS HONOUR: The plaintiff seeks to read the affidavit of the plaintiff Spero Danis Carydis sworn 20 September 2007, the substance of which goes to the plaintiff's readiness, willingness and ability to complete the contracts between June 2006 and the end of January 2007, although it touches also on present readiness, willingness and ability to complete, which has also been addressed elsewhere in the evidence.

2 Since the first version of the Defence was filed on 2 August 2007, the Defence has pleaded that the plaintiffs were not ready, willing or able to settle any of the five contracts on 10 July 2006, or as soon as practically possible thereafter, or at all in 2006. I therefore do not think it can be said that the issue of readiness, willingness and ability has only just come to light; it was pleaded in paragraph 8(o) of the original Defence.

3 The defendants complain that if the plaintiff is permitted to adduce this material now they will not, without an adjournment, be in a position to test the allegations that Mr Carydis makes as to his financial position in the second part of 2006. That complaint is a legitimate one in the context of a case that is likely to be completed today: it would be impossible in the available time to issue subpoenas and notices to produce to test the allegations made in the affidavit as to Mr Carydis' then capacity to raise funds to complete the purchase.

4 It may well be that the issue of readiness, willingness and ability to complete in the second half of 2006 - as distinct from when these proceedings were instituted - is not, or does not turn out to be, relevant; but whether or not that is so, the defendant's contention that it wished to rely on that matter has been on the table for some time.

5 In those circumstances I think fairness dictates I should refuse leave to read the affidavit.

On application for adjournment

6 Following the rejection, for the reasons I have just given, of Mr Carydis' affidavit of 20 September 2007, Mr Kunc, for the plaintiff, has applied for an adjournment of the hearing, in order to enable the defendant to investigate and test the further evidence that the plaintiff now wishes to adduce, and thus to permit that evidence to be adduced in due course. As I have said, that evidence relates substantially to the plaintiff's readiness, willingness and ability to complete between July 2006 and the end of 2006, as distinct from readiness, willingness and ability to complete when the proceedings were instituted or heard. One paragraph of the affidavit, and one document annexed to it, relates to Mr Carydis' present ability to complete; however, Mr Kunc has indicated that the plaintiff would be prepared to proceed on present ability to complete without reliance on that material.

7 There is, to my mind, a very live question as to whether readiness, willingness and ability to complete at any time before the institution of proceedings for specific performance is relevant at all. That is a question of law, and can be argued without a factual basis. If I conclude that readiness, willingness and ability to complete at that time is relevant, in the sense that its absence might dissuade me from granting relief that I would otherwise grant, then an adjournment to permit evidence on that topic to be adduced would probably be appropriate, notwithstanding that the plaintiff was the applicant for expedition, and that the issue was raised by the defendant's defence from the outset. I say that it would probably be appropriate, having regard to authorities such as State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, the substance of which I think remains reflected in the approach that the Court is required to take under the (NSW) Civil Procedure Act 2005.

8 However, that Act also requires that I take into account the efficient management of the Court's business. This case is in the Expedition List, and any adjournment of it will displace time available for the hearing of other expedited matters later in the year. The first occasion on which it could be heard is probably Monday 12 November, in which case it would displace one of the only two five day blocks available to the Court for an expedited case between now and the end of the year.

9 Almost all the issues in the case can be decided without the further evidence that Mr Kunc wishes to adduce and that Mr Moore wishes to test. If, ultimately, I come to the view that that evidence could have an impact on the result, then it can be dealt with at a later stage. I fully appreciate the undesirability of split hearings and the strictures of many authorities against adopting that course, but as I have indicated elsewhere, I think the Civil Procedure Act requires the Court to take a more pragmatic and interventionist and less purist approach to the management of litigation, in order to balance justice to the parties against efficient management of court business and minimisation of costs.

10 As the course that I propose to adopt will not preclude Mr Moore from cross-examining - whether on this occasion, or at a later stage if it becomes appropriate, on the issue of readiness, willingness and ability to complete in late 2006 – I do not see that it will result in any practical injustice to the parties. It may, if one view prevails, result in significant savings in time and in costs.

11 Accordingly, the course I propose to adopt is to defer for separate consideration the factual questions raised by paragraph 8(l) of the Further Amended Defence, but to leave for present determination the legal question as to whether, assuming that that factual allegation was made good, it would have any impact on the result. In other words, for present purposes, I would assume that the plaintiffs were not ready, willing or able to settle on 10 July 2006, or as soon as practically possible thereafter, or at all in 2006.

12 I order that the factual questions raised by paragraph 8(l) of the Further Amended Defence be determined separately and after all other issues in the proceedings. On that basis, I decline to adjourn the proceedings.

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