Clinical Laboratories Pty Ltd v General Practice Support Services Pty Ltd - [2013] NSWSC 1832

Supreme Court

New South Wales

Medium Neutral Citation: Clinical Laboratories Pty Ltd v General Practice Support Services Pty Ltd [2013] NSWSC 1832
Hearing dates: 10 December 2013
Decision date: 10 December 2013
Jurisdiction: Common Law
Before: Davies J
Decision:
1. Second Defendant's application to vacate hearing dates refused and the Notice of Motion dated 5 December 2013 dismissed.
2. Second Defendant to pay Plaintiff's costs of the Motion

Catchwords: PROCEDURE - application by Defendant to vacate hearing date - application based on impecuniosity of Defendant - inadequate information about financial position - failures to comply with court directions - application refused
Legislation Cited: Civil Procedure Act 2005
Cases Cited: Dawson v Deputy Commissioner of Taxation (1984) 56 ALR 367
Kingsway Group Limited v Belramoul [2009] NSWSC 345
Short v Short [1960] 1 WLR 833
Squire v Rogers (1979) 27 ALR 330
Watson v Watson (1968) 70 SR (NSW) 203
Category: Interlocutory applications
Parties: Clinical Laboratories Pty Ltd (Plaintiff)
General Practice Support Services Pty Ltd (First Defendant)
Tufiq Shah (Second Defendant)
Representation: Counsel:
T Holmes (Plaintiff)
C K Stewart (Second Defendant)
Solicitors:
Gadens Lawyers (Plaintiff)

File Number(s): 2012/329959

Judgment

These proceedings commenced on 23 October 2012 claiming money due under a deed entered into between the Plaintiff and the Defendants. The First Defendant is now under external administration and the proceedings are continuing only against the Second Defendant.

The matter is fixed for hearing for two days commencing 16 December 2013 on 30 July 2013.

The Second Defendant now applies to vacate the hearing principally on the grounds of his impecuniosity. The affidavit in support of the application sets out, in a somewhat abbreviated manner, the amount that the solicitors who were formerly acting for him required to defend the proceedings.

The Second Defendant says that his financial position was such that he could not afford to provide the money required. He said his financial position began to improve after he secured a manager's job for a small dental centre in Victoria, when that was established three or four months ago. He said that that enabled him to build up a little head of financial steam and to get some basic moneys together to approach his counsel, Mr Stewart, which he did on 23 November. At the present time, Mr Stewart is appearing for him on a direct access basis.

He draws attention to orders which he seeks in the Notice of Motion if the hearing date is vacated, which involve filing an amended defence, an amended list of documents and further evidence.

He says in his affidavit that he has now seen the need to call certain witnesses to corroborate the defence which he had not realised hitherto. He says that he believes his financial position will improve in 2014 because of an arrangement that he has entered into with Unified Medical and Surgical Centre Pty Limited. This arrangement is apparently supposed to result in him receiving $20,000 a month from a position that he will occupy in relation to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NSWSC 1832
Decision Date: 10 December 2013

CaseChat Overview and Summary

Clinical Laboratories Pty Ltd initiated legal proceedings against General Practice Support Services Pty Ltd in the Federal Circuit Court. The dispute involves a claim by Clinical Laboratories for the recovery of money, alleging that General Practice Support Services had not fulfilled its contractual obligations. General Practice Support Services applied to vacate the hearing date, asserting that it was unable to fund the litigation due to financial difficulties and had not provided adequate information about its financial situation. Additionally, the applicant had failed to comply with several court directions.

The court was tasked with determining whether the application to vacate the hearing date should be granted based on the applicant's financial position and compliance with court directions. The key legal issue was whether the applicant had demonstrated sufficient grounds to justify vacating the hearing date. The court considered the applicant's affidavit, which provided limited information about its financial situation, and noted that the applicant had not complied with certain court directions.

The court found that the information provided was inadequate to assess the applicant's financial position and that the applicant had not complied with court directions. The court also noted that the applicant had not provided a satisfactory explanation for its failure to comply with the directions. Consequently, the court refused the application to vacate the hearing date, emphasising the importance of providing accurate financial information and complying with court directions. The hearing proceeded as scheduled, and the matter was listed for further directions.

Orders