Davmond Holdings Pty Ltd v Zaynah Pty Ltd - [2017] WASC 201

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: DAVMOND HOLDINGS PTY LTD -v- ZAYNAH PTY LTD [2017] WASC 201

CORAM: MARTINO J

HEARD: 21 JULY 2017

DELIVERED : 21 JULY 2017

PUBLISHED : 28 JULY 2017

FILE NO/S: CIV 3033 of 2010

BETWEEN: DAVMOND HOLDINGS PTY LTD
Plaintiff
AND
ZAYNAH PTY LTD
First Defendant
CASHERE PTY LTD
Second Defendant
TIM REITER
Third Defendant
SELISE PTY LTD
Fourth Defendant

Catchwords:

Practice and procedure - Application to adjourn trial

Legislation:

Nil

Result:

Trial adjourned

Category: B

Representation:

Counsel:

Plaintiff:     Mr L A Tsaknis
First Defendant              :     No appearance
Second Defendant         :     No appearance
Third Defendant            :     In person
Fourth Defendant           :     No appearance

Solicitors:

Plaintiff:     George Papamihail Barristers & Solicitors
First Defendant              :     No appearance
Second Defendant         :     No appearance
Third Defendant            :     In person
Fourth Defendant           :     No appearance

Case(s) referred to in judgment(s):

Cauldron Energy Ltd v Beijing Joseph Investment Co Ltd [2016] WASC 22
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87

MARTINO J: This action was listed for trial for three days commencing Monday, 24 July 2017. By an application filed on 19 July 2017 the third defendant, Mr Reiter, applied for the adjournment of the trial. As he resides in Victoria I allowed him to appear on the hearing of this application by telephone. On the hearing of the application I decided to grant the adjournment application and to relist the trial on 26 September 2017. I gave brief reasons for my decision and said that I would publish more detailed reasons. These are those reasons.
The plaintiff claims that as a result of untrue representations concerning the supply and installation of Automatic Teller Machines made by the first defendant and Mr Reiter the plaintiff paid $445,000 to the first defendant. The plaintiff claims against the first defendant and Mr Reiter a declaration that they hold the sum of $445,000 on trust for the plaintiff and an order for payment of that sum and interest. The plaintiff claims against the second defendant rescission of a rectified contract. The plaintiff claims against the second defendant and Mr Reiter a declaration that a contract is void and of no effect, restitution of any monies paid to Mr Reiter pursuant to the void contract, rescission of the contract and damages. The plaintiff claims against the fourth defendant a declaration that a contract is void and of no effect and restitution of any monies paid to the fourth defendant pursuant to the void contract. The plaintiff claims against the second defendant and the fourth defendant rectification of a contract to give effect to a verbal agreement.
None of the defendants have solicitors acting for them.
On 6 July 2017 the plaintiff's solicitors filed a proposed amended statement of claim. In that document the plaintiffs seek to plead an additional untrue representation and to delete paragraphs of the statement of claim pleading rectification and breach of contract.
On 19 July 2017 the plaintiff filed an outline of submissions for the trial. The second defendant and the fourth defendant have been deregistered. The submissions deal with the plaintiff's claims against the first defendant and Mr Reiter.
On 19 July 2017 Mr Reiter sent an email to the court and to the solicitors for the plaintiff with a letter from Mr Reiter to the Principal Registrar dated 18 July 2017 seeking the adjournment of the trial, a minute of proposed orders for the vacation of the trial and an affidavit of Mr Reiter made by Mr Reiter on 19 July 2017 in support of the application.
In his affidavit Mr Reiter has deposed that he was not informed that the trial was listed to commence on 24 July 2017 until 6 July 2017 when he received a letter from the solicitors for the plaintiff with the proposed amended statement of claim and an amended trial bundle index. He deposed that until he received that letter he had not received any correspondence or notification by email, facsimile message or mail from the Supreme Court of the plaintiff's solicitors that the trial was scheduled to start on 24 July 2017.
He deposed that on or about 7 July 2017 he telephoned the Supreme Court and informed the person he spoke to that he had not been informed of the trial listing and that he only found out about it when he received the plaintiff's solicitor's letter of 6 July 2017. The person at the court that Mr Reiter spoke to said that the Supreme Court would contact him shortly.
On 10 July 2017 Mr Reiter received an email from Mr Joshua Simpson, the Coordinator Listings of the Supreme Court. A copy of that email is attached to Mr Reiter's affidavit. In it Mr Simpson said that he had attached the correspondence on the file showing that the listing letter was sent to Mr Reiter on 19 April 2017. Mr Simpson noted that he did not include Mr Reiter in the first letter sent, which he realised in the afternoon and posted out a letter to Mr Reiter.
Copies of those letters were attached to the email. The first letter was addressed to the plaintiff's solicitors and copied to Rockwell Olivier, the solicitors who previously acted for the defendants. It stated that the trial had been listed to commence for three days on 24 July 2017. It is endorsed in hand 'Posted 19/4/17'. The second letter was the same as the first letter but the details of the solicitors for the plaintiff and the former solicitors for the defendants have been struck through. Added to the letter and circled in hand, at the foot of the page, are Mr Reiter's name and address in Victoria. The letter is endorsed in hand 'Posted 19/4/17 in afternoon'.
Mr Reiter deposed that he did not receive the letter. He has attached to his affidavit a copy of a letter dated 19 July 2017 from the accounting firm Stantin Partners Pty Ltd stating that their office is the registered office address for the first defendant and that no correspondence for the first defendant was received during the period 1 April 2017 to 30 April 2017.
On 10 July 2017 Mr Reiter sent an email to Mr Simpson informing him that, as he had told Mr Simpson's colleague on 7 July 2017, he was first made aware of the trial listing on 6 July 2017 when he received a copy of the plaintiff's solicitors' letter of 6 July 2017. Mr Reiter informed Mr Simpson that he was not available to attend the proposed date of trial. He said that he also noted that the plaintiff will seek leave to amend the statement of claim. He requested appropriate court processes to be followed and adequate time to be allowed to review and respond to the amended statement of claim. He said that he was considering the services of a barrister for the trial and he would request that the barrister provide him with his availability for August 2017 to December 2017 and revert back to Mr Simpson.
On 12 July 2017 Mr Simpson sent an email to Mr Reiter stating that he had a direction from the Acting Principal Registrar and that Mr Reiter would need to apply for an adjournment of the trial on notice to the plaintiff.
Mr Reiter also deposed that on 25 February 2017 the plaintiff's solicitors wrote to the Supreme Court stating that the consolidated unavailable dates for the parties for the trial included all of July 2017. A copy of that letter is attached to Mr Reiter's affidavit. Mr Reiter deposed that based on the information contained in that letter he proceeded to confirm travel arrangements for July 2017 with his employer. From 25 July 2017 to 17 August 2017 he will be travelling to Canada on a work related trip organised by his employer Super Sealing Pty Ltd. Attached to his affidavit is a copy of an undated letter from the Chief Financial Officer of Super Sealing stating that a work trip to Canada for Mr Reiter has been in the pipeline since January 2017 and that this trip is scheduled to take place from 25 July to 15 August 2017. In the letter Mr Cerra states that the trip is imperative as there are new clients to meet and a job to complete. Materials and associated goods are already in transit for Mr Reiter's arrival. Other work duties in the USA are also required as part of the trip to meet with business partners located there.
Also attached to Mr Reiter's affidavit are copies of Mr Reiter's air tickets. Those tickets are electronic tickets. They appear to be dated 16 July 2017. They show that Mr Reiter is booked to leave Australia on 25 July 2017 and to return to Australia on 17 August 2017.
Mr Reiter deposed that the lack of time to prepare for the trial would hamper his ability to present his case at the trial and would prejudice the presentation of that case. The plaintiff is raising numerous and complex factual and legal issues he deposed. He also deposed that he needs time to consider the plaintiff's proposed amended statement of claim, to obtain legal advice on the amendments and to prepare amendments to his defence, if required.
The plaintiff opposes the adjournment of the trial. In an affidavit made on 20 July 2017 Martin C M Muk, a solicitor employed by the solicitors for the plaintiff, has deposed that his office has never been served nor received a notice of intention to act in person from Mr Reiter. He also deposed that to the best of his knowledge, no order has been made in favour of the first defendant excluding the operation of O 12 r 1(2) of the Rules of the Supreme Court 1971 (WA) 'requiring the third defendant to appear and defend the action by a practitioner'. No doubt the reference to the Rules requiring the third defendant to appear and defend the action by a practitioner is meant to be a reference to the first defendant.
Attached to Mr Muk's letter is a copy of the plaintiff's solicitor's letter dated 6 July 2017 to the first defendant and to Mr Reiter. That letter was sent by post and facsimile to the first defendant and by post, facsimile and email to Mr Reiter.
Mr Muk deposed that on or about 17 October 2016 he undertook a company search of the first defendant. A copy of the search is attached to his affidavit. It shows that the registered office of the first defendant is the firm of Stantins in Hawthorn, Victoria and that Mr Reiter is the director of the first defendant. Since 17 October 2016 the plaintiff's solicitors have sent all correspondence to that registered office. Mr Muk has never received any correspondence stating that his office's correspondence to the registered office was undelivered or undeliverable.
On my perusal of the court file it appears that on 10 May 2016 Registrar Davies ordered that upon compliance with O 8 r 7(1)(a) and (b) of the Rules Rockwell Olivier will cease to act for the first defendant. On 23 September 2016 Mr Reiter filed a notice of change of representation, service details or address stating that he intended to act in person. On 27 September 2016 Registrar Davies made an order on the papers that on the application of the solicitor for Mr Reiter the firm of Thomson Geer had ceased to be the solicitors acting in this matter.
The plaintiff has referred in its submissions to s 75(1) of the Interpretation Act 1984 (WA) which provides that where a written law authorises or requires a document to be served by post service shall deemed to be effected by properly addressing and posting the document as a letter to the last known address of the person and, unless the contrary is proved, to have been effected at the time when the letter would have been delivered in the ordinary course of post. They point to authorities such as Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 which establish that evidence of non-receipt does not constitute proof of non‑delivery. The plaintiff submits that the first defendant and Mr Reiter have not proved that the notice of the hearing was not served on them.
The plaintiff submits that Mr Reiter and the first defendant have known about the trial since 6 July 2017. It was at that time that the plaintiff was made aware of the proposed amendments to the statement of claim. The plaintiff points to Mr Reiter's ticket being dated 16 July 2017 and submitted that he made his travel plans in full knowledge of the trial listing.
I have power under O 34 r 4 of the Rules to adjourn the trial if I think doing so is expedient in the interests of justice. Order 1 r 4B provides that the Rules are to be construed and applied so as best to ensure the attainment of the objectives referred to in O 1 r 4B(1) which include promoting the just determination of litigation, disposing efficiently of the business of the court, maximising the efficient use of available judicial resources and facilitating the timely disposal of business.
As Mitchell J said in Cauldron Energy Ltd v Beijing Joseph Investment Co Ltd [2016] WASC 22:
The discretion to grant or refuse an adjournment must also be exercised consistently with the obligation of the court to determine disputes in a manner which is procedurally fair. However, it is well established that this does not require that a party be given an unlimited opportunity to present a case or defence. What is required is that the parties are provided with a sufficient opportunity to present their cases. A party who is given a sufficient opportunity to present their case, and who fails to take advantage of that opportunity without reasonable cause, cannot complain that they have been denied procedural fairness because the court has declined to provide a further opportunity to do so.
In considering whether determination of litigation is just, regard must be had to the interest of other parties to the litigation and other litigants in other cases. Speed and efficiency, in the sense of minimum delay and expense, are aspects of the just resolution of proceedings. Considerations of speed and efficiency cannot detract from the requirement that a party to litigation be given sufficient opportunity to present their case. However, where a party has been given a sufficient opportunity to present their case then a decision about an adjournment to provide further opportunity must take account of the injustice to the other parties which may follow from the delay, expense and disruption which results from a listed trial not proceeding [137] - [138].
Mr Reiter concedes that he did not serve the plaintiff with his notice of change of representation stating that he intended to act in person which he filed on 23 September 2016. He should have done that. However that failure does not seem to me to be of any significance in determining this application. It appears from the plaintiff's solicitors' letter dated 24 February 2017 in which they provided the consolidated unavailable dates of the parties and from emails on the correspondence section of the court file that the plaintiff's solicitors were aware that Mr Reiter was acting in person and that they knew how to contact him.
It would appear that the court has not ever given notice of the trial to the first defendant. The copies of the court's correspondence attached to Mr Simpson's email were not addressed to the first defendant. The correspondence section of the court file does not show that the court gave notice of the trial dates to the first defendant. The first defendant is not legally represented and so, by reason of O 12 r 1(2) of the Rules, it is not entitled to defend the action unless it appoints a legal practitioner. Nevertheless it is a party to the action and it is entitled to notice of the trial date.
Mr Reiter is the director of the first defendant and it is my view that once Mr Reiter was aware of the trial date the first defendant was also aware of that trial date. Notice of the trial was sent to the first defendant on 19 April 2017. However statutory presumptions as to when documents that have been sent by post are received do not dispose of the exercise of my discretion which is to be exercised consistently with the obligation of the court to determine disputes in a manner which is procedurally fair. The only factual conclusion I can reach in exercising that discretion on the information that I have is that it was not until 6 July 2017 that Mr Reiter was made aware that the trial was listed to commence on 24 July 2017.
I do not regard Mr Reiter's proposed trip to North America as being of significance in this application. It appears not to have been finally booked until after Mr Reiter was made aware of the trial dates. Whether that is so or not, trips can be cancelled and reorganised. No doubt cancelling Mr Reiter's overseas trip would involve some expense and inconvenience. However so would adjourning the trial. Mr Reiter has not quantified what the expense of cancelling his trip would be.
My decision on this application turns on balancing the injustice, expense and delay that would be caused to the plaintiff if the trial is adjourned against the possible injustice that would be caused to Mr Reiter if his application for the adjournment of the trial is refused.
I have regard to the fact that witness statements were exchanged before the action was entered for trial. Subject to the proposed amendment of the statement of claim he has known what the issues are for some time. The plaintiff submits that even if the amendment to the statement of claim is permitted the plaintiff will not adduce any additional evidence. However the period from 6 July 2017 to 24 July 2017 is only approximately 2½ weeks. The issues raised in this action are reasonably complex. I do not consider that the period of which Mr Reiter has had notice of this trial are sufficient to enable a litigant in person to prepare for the trial. I have decided that I should grant the application to adjourn the trial to ensure that the disputes between the parties are determined in a manner that is procedurally fair.
I heard from the parties as to a suitable date for the relisted trial. The date of 26 September 2017 is suitable for all parties. The parties now know the dates of the trial and they can prepare for trial on that basis. The first defendant and Mr Reiter may want to instruct legal practitioners to act for them. They can do that, but they will be required by my listing of the trial to find legal practitioners who are available on the dates that I will list the action. I have also listed the action for case management directions on 22 August 2017.