D B Mahaffy and Associates Pty Ltd v Jeffrey Mahaffy

[2011] NSWSC 1643

Supreme Court

New South Wales

Case Title:

D B Mahaffy and Associates Pty Ltd v Jeffrey Mahaffy

Medium Neutral Citation:

[2011] NSWSC 1643

Hearing Date(s):

09/09/2011

Decision Date:

09 September 2011

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(a) Adjourn the amended notice of motion of Mr David Mahaffy filed 2 August 2011 to Friday 21 October 2011 at 10 am before me.
(b) Mr Jeffrey Mahaffy to file and serve all submissions upon which he intends to rely in opposition to the motion, together with an amended statement of contempt charges which he wishes to seek leave to file, on or before 4pm Friday 7 October 2011.
(c) Mr David Mahaffy to file and serve any submissions in reply, on or before 4 pm Monday 17 October 2011.
(d) Reserve question of costs.

Catchwords:

PRACTICE AND PROCEDURE - Lengthy litigation between siblings - Notice of motion seeking contempt of court charges - Motion in response seeking summary dismissal of contempt charges - Opposed application to adjourn notice of motions - Party applying for adjournment did not comply with timetable for submissions and amendment of statement of charge - Adequate explanation for default in compliance of directions - No specific prejudice to other party - Motions can be heard and resolved relatively quickly - Preparation and appearance by other party noted but not determinative - Adjournment granted

COSTS - Adjournment of hearing of notices of motion - Reserve final order for costs until hearing of the motion - Permits resolution of all costs to a single motion at the same time - Likelihood of single lump sum costs order

Legislation Cited:

Cases Cited:

Texts Cited:

Category:

Interlocutory applications

Parties:

D B Mahaffy and Associates (P1)
David Bruce Mahaffy (P2)
Jeffrey Robert Mahaffy (D)

Representation

- Counsel:

G F Jauncey (P1-2)
Self (D)

- Solicitors:

Self (P1-2)
Self (D)

File number(s):

SC 2010/119143

Publication Restriction:

Nil

EX TEMPORE JUDGMENT

1. Mr David Mahaffy and Mr Jeffrey Mahaffy, who are brothers, have been in dispute for some years as a result of which there has been litigation between them since about 2006.

2. On 30 November 2010 in the Court of Appeal, Mr Jeffrey Mahaffy filed a notice of motion which sought, amongst other things, orders that Mr David Mahaffy be held in contempt of court. A statement of charge was also filed at or about that time which set out 15 charges of contempt. The Court of Appeal made orders which had the effect of referring back to a single Judge of this Division, the hearing of all of the matters dealing with the application for Mr David Mahaffy to be held in contempt and also for some other outstanding allegations.

Procedural history before Garling J

1. The matter was listed before me on 2 August 2011. On that date, Mr Jauncey of counsel, who appeared for Mr David Mahaffy, sought and was granted leave to file in court an amended notice of motion, which sought the summary dismissal of the contempt charges. An argument occurred before me on that date as to whether that motion ought to be heard at the same time as the hearing of the substantive charges, or whether it ought be heard in advance of hearing of the substantive charges. I was persuaded, and found, that the interests of justice and the just, quick and cheap resolution of the real issues in the proceedings pointed towards the separate hearing of Mr David Mahaffy's motion for summary dismissal, in advance of the hearing of the substantive proceedings.

2. I gave directions on that day which had the effect of enabling the parties to put their arguments in writing, and which would enable Mr Jeffrey Mahaffy to have considered whether he wished to amend the statement of charge in light of the submissions of Mr Jauncey.

3. I then listed the matter for oral submissions to take place for a two hour period today. Consistent with my directions, Mr Jauncey, on behalf of Mr David Mahaffy, has filed the submissions upon which he intends to rely and also a list of the authorities and legislation to which he intends to make reference.

4. A quick reading through those submissions indicates that Mr Jauncey has gone to some lengths to set out what all of his arguments are in respect to the motion and to identify the appropriate authorities. He has drawn my attention to one amendment that he wishes to make to those submissions and that is in paragraph 19. Mr Jauncey has informed me that the charges to which he intended to refer in paragraph 19 of his submissions were charges 6, 7, 10, 11, 12, 13, 14 and 15. I have made those amendments to his submissions and will read them in that way.

5. Although I made an order that Mr Jeffrey Mahaffy was to file and serve all written submissions upon which he intended to rely with any amended statement of charges by 29 August 2011, he has not been able to comply with that direction.

Application for Adjournment

1. When the matter was called on for hearing today, Mr Jeffrey Mahaffy sought an adjournment, which is opposed by Mr Jauncey on behalf of Mr David Mahaffy. Mr Jeffrey Mahaffy draws attention to a series of events which have occurred since the matter was last before the Court, the combination of which prevented him from attending in a timely way to the preparation of submissions and addressing any changes to the statement of charges. It is not necessary for me to set out in detail what those events are; they are all set out in a letter of 8 September 2011, which was tendered on this application.

2. The combination of matters asserted in those six paragraphs persuades me that the default of Mr Jeffrey Mahaffy in complying with directions and being able to go ahead today is adequately explained.

3. I am satisfied that no specific prejudice is demonstrated so far as Mr David Mahaffy is concerned, and that the matter can be brought on relatively quickly and heard and disposed of in a relatively prompt fashion. Mr Jauncey opposed the application for adjournment and pointed to the fact that his client has appeared today, and although his submissions can again be used on another occasion, he nevertheless incurred the cost of being present today.

Costs

1. Ordinarily, in the event of a late application for adjournment such as this one and the Court being persuaded to grant that application, the Court would make an order that any of the costs thrown away by the adjournment be paid by the person who requested the adjournment. Nothing of substance has been put in opposition to this order.

2. However, I think that the appropriate course to follow with respect to costs, having noted that fact, is to reserve the final order for costs until the hearing of this motion.

3. There are two reasons for that: first, it is obviously better to resolve all costs relating to a single motion at the same time and to make an order which ultimately reflects the interests of justice.

4. Second, this is a case in which, were I persuaded in due course to make any order for costs, I would be giving earnest consideration to assessing those costs as a single lump sum as a part of making the order, and in that circumstance I think it is better that the costs of today be reserved until the final making of any order for costs.

Discernment

1. In all the circumstances then, I am persuaded that I should grant the application by Mr Jeffrey Mahaffy for an adjournment. He informed me he needs about three weeks to complete these tasks. That would take the Court to Friday 7 October, to allow Mr Jauncey some period of time to contemplate the submissions and amendments, if any.

2. I think that would be adequate time so that all parties can be ready if I bring the matter back for hearing before me to Friday 21 October.

Orders

1. I make the following orders:

   (a)I order that the hearing of the amended notice of motion of Mr David Mahaffy filed 2 August 2011 be adjourned to Friday 21 October 2011 at 10 am before me.

   (b)I direct that Mr Jeffrey Mahaffy on or before 4 pm Friday 7 October 2011 file and serve all submissions upon which he intends to rely in opposition to the motion, together with an amended statement of contempt charges which he wishes to seek leave to file.

   (c)I direct that Mr David Mahaffy on or before 4 pm Monday 17 October 2011, file and serve any submissions in reply.

   (d)I reserve the question of costs of and occasioned by the adjournment of today's hearing and I note I have allowed two hours.

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