Connam Pty Ltd as trustee for Christodoulou Family Trust v Lazarou

[2019] NSWSC 1268

Supreme Court

New South Wales

Medium Neutral Citation:	Connam Pty Ltd as trustee for Christodoulou Family Trust v Lazarou [2019] NSWSC 1268
Hearing dates:	18 September 2019
Date of orders:	18 September 2019
Decision date:	18 September 2019
Jurisdiction:	Common Law
Before:	Lonergan J
Decision:	Application for adjournment refused.
Catchwords:	CIVIL PROCEDURE – adjournment – applicant on notice of motion seeking adjournment due to ill health of instructing solicitor – no evidence provided as to nature of illness and its effect on preparation of matter – whether adjournment should be granted – no utility in granting adjournment – application for adjournment refused
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 56
Category:	Procedural and other rulings
Parties:	Connam Pty Ltd as trustee for Christodoulou Family Trust (Plaintiff/Respondent) George Lazarou (First Defendant) Andreas Lazarou (Second Defendant/Applicant) Sofia Lazarou (Third Defendant/Applicant)
Representation:	Counsel: T Maltz (Plaintiff/Respondent) P Berg (Second and Third Defendants/Applicant)   Solicitors: DC Chambers & Associates (Plaintiff/Respondent) Gregory Hilton Artup (Second and Third Defendants/Applicant)
File Number(s):	2019/51609
Publication restriction:	Nil

Ex tempore Judgment

1. A statement of claim was filed on 15 February 2019 in the Possession List of this Court. The proceedings arise out of a loan agreement involving George Lazarou, Andreas Lazarou and Sophia Lazarou and a guarantee associated with that loan agreement executed in June 2017 according to the affidavit material before me.

2. Listed before me today for hearing was a notice of motion filed on 24 July 2019, signed by Mr Berg, counsel who appeared before me for the applicants, the second and third defendants. That notice of motion sought an order that default judgment entered against the second and third defendants, namely, Andreas and Sophia Lazarou, on 1 May 2019 by Schmidt J, be set aside.

3. Subsequent to the default judgment, on 26 June 2019 Walton J granted a writ of possession but stayed the writ for 28 days to 24 July 2019.

4. The notice of motion filed on 24 July 2019 was listed before the Registrar on 6 August 2019. At that time Mr Berg of counsel appeared for the second and third defendants. The matter was given a timetable for submissions and was listed for hearing today.

5. The timetable was not complied with by the applicants. I was not provided with a court book by the applicants. Written submissions were not filed and were only served this morning at 9:50am. The affidavits relied upon by Andreas Lazarou and Sophia Lazarou dated 21 August 2019 had not been filed, although the short initiating affidavit of Andreas Lazarou of 24 July 2019 was filed.

6. At the commencement of the hearing, I sought assistance from Mr Berg in outlining the bases for his clients’ application. That assistance was not immediately forthcoming. I left the Bench to read the Court Book that had been prepared by the respondent's solicitors for my assistance.

7. Upon return to court an hour later, in the process of exchange between counsel and the Bench identifying some gaps in the evidence, Mr Berg then made an application to adjourn the hearing of the notice of motion.

Submissions

8. The grounds upon which he made the application was stated to be “prejudice to my clients because my instructing solicitor has been sick for a month”, and “I have also been unwell for a week during August.”

9. Mr Maltz, who appears for the plaintiff respondent submitted that the adjournment application should be refused. He argued that illness of counsel for a week should not have any effect on the need for the notice of motion to proceed. Other counsel could have been briefed. The point in issue is a discrete one, and Mr Berg had been involved in the matter for some months, given that he signed the notice of motion filed on 24 July 2019.

10. In terms of the ground relating to the illness of the solicitor, Mr Artup, Mr Maltz noted that no evidence had been offered as to the nature of his illness. No evidence had been offered as to the relevance of the asserted illness to the failure of the affidavits to be appropriately prepared or whatever other steps were thought to be necessary to be taken. There was no evidence as to whether there were other personnel at the practice who could have assisted. There is no reason why counsel briefed in the matter could not have pursued the completion of appropriate evidence. There was no reason why a clerk or other legal person could not have witnessed any relevant further affidavit material.

11. In general, it was submitted that the explanation was wholly unsatisfactory and, in effect, was a non-explanation.

12. Further and of significance, there had been no identification by Mr Berg of what further issue would be the subject of further preparation and/or affidavit evidence.

13. There was mention of an assertion that is apparently to be made that the alleged service of the statement of claim deposed to in the affidavits of Mr Folkes of 4 March and 5 September, did not take place. Mr Folkes has not been requested for cross-examination on his affidavits but this point does not go anywhere because first, there is compelling evidence from an independent process server in affidavit form (not requested for cross-examination) that service was effected. Second, it does not matter whether the service was effected at the house where the second and third defendants live or where the first defendant lives, or somewhere else. The point is that the evidence indicates that rule-compliant service was effected.

14. Mr Maltz argued therefore an adjournment to allow this further matter to be the subject of evidence does not provide a reason why the Court should adjourn the matter.

Decision

15. In exercising any under the Civil Procedure Act 2005 (NSW), I must have regard to s 56, titled “Overriding purpose”:

56   Overriding purpose

(1)  The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2)  The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.

(3)  A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.

(3A)    (Repealed)

(4)  Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3):

(a)  any solicitor or barrister representing the party in the proceedings,

(b)  any person with a relevant interest in the proceedings commenced by the party.

…..

16. The notice of motion had a timetable for preparation. The grounds stated as the bases for adjournment are inadequate. There is no utility in granting an adjournment. The date for hearing was fixed over one month ago. There was no notification before today that the matter was not ready. Nothing has been identified that would be achieved by an adjournment.

17. Given those considerations and in pursuit of the requirements of s 56 of the Civil Procedure Act, I refuse the application for adjournment.

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Decision last updated: 23 September 2019