Community Corporation 41170 Inc v Ceg Direct Securities P/L (No 1)

[2019] SADC 185

District Court of South Australia

(Civil: Application)

COMMUNITY CORPORATION 41170 INC v CEG DIRECT SECURITIES P/L (No 1)

[2019] SADC 185

Reasons for Decision of His Honour Judge Slattery (ex tempore)

4 December 2019

PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - ADJOURNMENT

On 23 July 2019, a Master set this action for trial at the earliest possible date and it was listed for trial on 2 December 2019. Orders made at a subsequent directions hearing were not fulfilled by the defendant. On 19 November 2019, the Court received an affidavit from the solicitor for the defendant indicating that the sole director of the defendant was recovering from surgery and was seeking an adjournment of the trial date. Counsel also indicated that despite the lawyers' best efforts, they were unable secure instructions from their client to abide by the Court’s previous orders.

At the hearing of the resulting application for adjournment heard by the Court on 25 November 2019, the plaintiff gave evidence that its financial position is dire and that further delay of this matter would cause it to suffer irreparable prejudice. Plaintiff also argued that it was not necessary that the director be called in evidence. The director of the defendant provided an affidavit as to his medical condition attaching a letter from his surgeon which indicated diminished neurologic functioning with little prospect for any significant improvement in the future.

Held: Application refused.

The plaintiff is in a dire financial position and without the ongoing financial contributions claimed from the defendant, it cannot function and will possibly fail. No case has been made that it is essential to call the director of the defendant in evidence.

The evidence before the Court is that the director’s condition will not in the foreseeable future significantly improve to a point where he could give cogent evidence in this matter. In the exercise of the Court’s discretion, the preponderance heavily weighs in favour of the rejection of the defendant’s application. There would be no utility in granting the application of the defendant for an adjournment, and there is the real possibility that such an order would cause irreparable harm to the plaintiff.

Community Titles Act 1995 ss 3, 118, 142; District Court (Civil) Rules 2006 rr 119, 232; Corporations Act 2001 (Cth) s 418, referred to.
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 1 KB 223; Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, considered.

COMMUNITY CORPORATION 41170 INC v CEG DIRECT SECURITIES P/L (No 1)
[2019] SADC 185