Commonwealth Bank of Australia v Susan Hannaford Pty Ltd (No. 3)

[2013] NSWSC 650

Supreme Court

New South Wales

Medium Neutral Citation:

Commonwealth Bank of Australia v Susan Hannaford Pty Ltd (No. 3) [2013] NSWSC 650

Hearing dates:

27 May 2013

Decision date:

27 May 2013

Jurisdiction:

Common Law

Before:

Davies J

Decision:

(1) I revoke the order I made on 23 May 2013 directing the parties to approach the listing manager for a hearing date.

(2) I grant leave to the Plaintiff to approach the Listing Manager to obtain a hearing date, such hearing not to be before 1 August 2013.

(3) The Third Defendant is to pay the costs of today.

Catchwords:

PROCEDURE - no point of principle

Category:

Interlocutory applications

Parties:

Commonwealth Bank of Australia (Plaintiff)
Susan Hannaford Pty Ltd (First Defendant)
Marquessa Hannaford (Second Defendant)
Susan Louise Hannaford (Third Defendant)

Representation:

Counsel:
J White (Plaintiffs)
No appearance (Defendants)
Solicitors:
Gadens Lawyers (Plaintiffs)
Mandoh & Associates (Defendants)

File Number(s):

2010/4800

Judgment

1. On 23 May 2013, I delivered judgment on an application by the Third Defendant for leave to amend against her cross-claim in the proceedings. I dismissed the application. I directed the parties to obtain a hearing date for the final determination of the proceedings.

1. Before my reasons for judgment had been handed to the parties the solicitor for the Third Defendant informed me that his client intended to appeal against the orders that I had made. In circumstances where the application to amend was to include a defence some three and a half years after the proceedings commenced, being a defence that was known to the Third Defendant from the outset, the statement by the solicitor that his client intended to appeal even before reading my reasons gives rise to the strong suspicion that there is simply an attempt to delay the determination of the proceedings.

1. I am reinforced in that view by one of the emails tendered on this application from the solicitor for the Third Defendant who says, amongst other things, that listing the matter for hearing at this time would not serve any useful purpose because of the pending appeal proceedings "which may take longer than expected to finalise." There does not appear to be any basis for suggesting that an application for leave to appeal against a practice and procedure decision would be one that would take longer than expected to finalise.

1. As mentioned, on 23 May I directed the parties to approach the list clerk to obtain a hearing date, such hearing not to be before 1 August. The solicitor for the Third Defendant has indicated that he does not intend to do so because of his client's intention to appeal. In those circumstances, I revoke that order and I grant leave to the Plaintiff to approach the listing manager to obtain a hearing date of the substantive proceedings, such hearing not to be before 1 August 2013 and with an estimated hearing time of no more than one day.

1. My Associate will forward a copy of these reasons and this order to the solicitor for the Third Defendant.

1. The Plaintiff seeks costs of today. The need for today's listing arose because the Third Defendant's solicitor declined to accede to the direction I made to approach the listing manager. That required the Plaintiffs to re-list this matter for further directions today. There is no appearance for the Third Defendant or his client.

1. In those circumstances the Third Defendant should pay the costs of today.

**********

Decision last updated: 29 May 2013