Commonwealth Bank of Australia v Kalantzis

[2013] NSWSC 43

Supreme Court

New South Wales

Medium Neutral Citation:

Commonwealth Bank of Australia v Kalantzis [2013] NSWSC 43

Hearing dates:

01/02/2013

Decision date:

04 February 2013

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(1) Notice of Motion filed 1 February 2013 dismissed.

(2) Defendant to pay the plaintiff's costs.

Catchwords:

PRACTICE AND PROCEDURE - Late Application to Vacate hearing date - No satisfactory explanation offered - Dictates of justice against application - Application refused - No point of principle.

Legislation Cited:

Civil Procedure Act 2005

Cases Cited:

Aon Risk Services Ltd v Australian National University [2009] HCA 27

Category:

Procedural and other rulings

Parties:

Commonwealth Bank of Australia (P)
Linda Kalantzis (2D)

Representation:

P Dowdy (P)
D A Allen (2D)

File Number(s):

2010/321911

Judgment

1. The Commonwealth Bank of Australia sues Mrs Linda Kalantzis on a guarantee which relates to the debts of a company called Nexon Pty Limited.

1. These proceedings are fixed for a final hearing on 5 February 2013. The hearing date was allocated in August 2012.

1. On Thursday 31 January 2013 Mrs Kalantzis foreshadowed that she would be making an application for the hearing date to be vacated and for an adjournment of the proceedings. On Friday 1 February 2013 that application was heard.

1. At the conclusion of the hearing I announced the orders of the court, namely, that the application would be dismissed. I also noted that I would deliver reasons for those orders on Monday 4 February 2013.

1. These are the reasons for the orders which I indicated:

The Obligations of the Parties

1. Section 56 of the Civil Procedure Act 2005 places an obligation on all parties to litigation to assist the court to further the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in dispute. It also obliges a party to comply with directions and orders of the court.

1. The court, when considering an application for an adjournment, must seek to act in accordance with the dictates of justice: see s 58 (1) of the Civil Procedure Act. In doing so, the court must have regard to the overriding purpose and the duties and obligations of the parties, which I have summarised above, and may have regard to a number of other factors set out in s 58 (2) of the Civil Procedure Act.

1. Relevantly, in this case those matters include:

(a)   the degree of difficulty or complexity of the issues in the proceedings;

(b) the degree to which the parties have fulfilled their obligations under s 56 of the Civil Procedure Act and

(c)   the degree of injustice that would be suffered as a consequence of any order.

1. As well, the court is obliged to have regard to the decision of the High Court of Australia in Aon Risk Services Limited v Australian National University [2009] HCA 27, and in particular what was said by Gummow, Hayne, Crennan, Kiefel and Bell JJ at [98] and [99]; see also Heydon J at [137].

History of the Proceedings

1. The history of these proceedings is set out accurately and at length in an affidavit relied upon by the Commonwealth Bank sworn by a solicitor, Ms Spain, on 1 February 2013. It was not suggested by Mrs Kalantzis that there was any inaccuracy in the contents of the affidavit. I accept the contents as true and accurate.

1. Since this is, in effect, an ex tempore judgment, I will attempt only to summarise the lengthy history of the proceedings.

1. Proceedings were commenced by Statement of Claim filed about two and half years ago on 28 September 2010.

1. By the time the application for the adjournment was made, Mrs Kalantzis had retained her fifth solicitor.

1. Initially pleadings were filed in a timely fashion. Mrs Kalantzis's defence was filed on 7 December 2010 and the Bank's reply was on 24 February 2011. Subject to the filing of evidence, the matter ought to have been heard and finalised during the third quarter of 2011.

1. However, the first order for Mrs Kalantzis to file evidence was not made until 18 August 2011. Since then up to, and including, 4 September 2012, three further orders were made for Mrs Kalantzis to file any evidence upon which she wished to rely. On 4 September 2012, an agent for her solicitor informed the court that she did not intend to file any further evidence.

1. On 19 April 2012, with leave of the Court, the Commonwealth Bank filed an amended Statement of Claim. Since then, despite three separate orders of the Court requiring Mrs Kalantzis to file a defence to the amended Statement of Claim, she has not done so.

1. With respect to both the filing and service of evidence, and also the filing of a defence to the amended Statement of Claim, so poor was the compliance of Mrs Kalantzis with the Court's orders and directions, that Davies J felt obliged in June 2012, with respect to the defence, and in September 2012, with respect to evidence, to order that Mrs Kalantzis could not file any further material without leave of the Court.

The Adjournment Application

1. Mr Allen appeared for Mrs Kalantzis on the application. He submitted that, having regard to the terms of the draft defence to the amended Statement of Claim, Mrs Kalantzis had a reasonably arguable defence, in whole or in part, to the claim on the guarantee. He further submitted that it was in the interests of justice that the hearing should be vacated so that Mrs Kalantzis could attend to compiling such further evidence as may be necessary to support her defence.

1. The Commonwealth Bank opposed the application. It submitted that the proposed defence did not raise any reasonably arguable point and that, in any event, having regard to the orders of Davies J, leave ought not be granted.

1. In seeking the adjournment and the vacation of the hearing date, no explanation was offered by Mrs Kalantzis as to any of the following:

(a)   her failure to comply with any of the court's orders requiring her to file her evidence and her pleadings;

(b)   her conduct in instructing and withdrawing instructions from four separate solicitors and instructing her current solicitor within only a few days before this application;

(c)   any description of the evidence which may be reasonably obtainable to support the proposed defence which claimed an equitable right, notwithstanding express clauses to the contrary, to reduce the monies she is otherwise bound to pay the Commonwealth Bank under the guarantee.

1. However, submissions on her behalf pointed to filed evidence which it was said provided support for her claim, which she accepted had never previously been advanced, namely, that the Bank's conduct in appointing a receiver to the secured property had caused her damage in the sense that the value of the security properties had thereby been diminished.

1. Having regard to the fact that the security properties had all been sold, and that the appointment of the receiver had been terminated, she submitted that since her debt was an unsecured one, there was no ongoing prejudice to the Bank in any adjournment of the proceedings.

Discernment

1. I am conscious of the fact that it is not appropriate to use case management orders to punish any litigant for non-compliance with previous court orders.

1. I am also conscious of the fact that it is the dictates of justice which must prevail in relation to the parties when considering the orders sought, but that those dictates of justice oblige me to look more broadly at the effect any adjournment may have on the efficient disposal of the court's business, the timely disposal of these and other proceedings, and the efficient use of available judicial resources.

1. Having regard to the lengthy and lamentable history, the lateness of the application, the inability of the Court to allocate any other cases to take the vacated dates, the fact that the proposed defence is being raised by Mrs Kalantzis for the first time, almost two and a half years after the proceedings were commenced, and the significant expense which would be incurred by the Bank, in particular, by reason of the adjournment and the need to prepare the case again for the hearing, I am not satisfied that the dictates of justice permit me to adjourn the proceedings.

1. The complete absence of any explanation by Mrs Kalantzis for the past history of the proceedings, and any good reason for the making of the orders sought strongly supports my approach to the orders in the Notice of Motion.

1. In short, the application is too late, unexplained and of insufficient substance to persuade me that the interests of justice require the Court to adjourn the proceedings.

Orders

1. I make the following orders:

(1)   the Notice of Motion filed 1 February 2013 is dismissed;

(2)   the defendant is to pay the plaintiff's costs of the motion.

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Decision last updated: 04 February 2013