Dye v Commonwealth Bank of Australia

[2012] NSWCA 206

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Dye v Commonwealth Bank of Australia [2012] NSWCA 206

Hearing dates:

29 June 2012

Decision date:

29 June 2012

Before:

Sackville AJA at [1]

Decision:

1. Motion to adjourn application for leave to appeal dismissed.

2. Applicant to pay the Respondents' costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Category:

Interlocutory applications

Parties:

Vivienne Louise Dye (Applicant)
Commonwealth Bank of Australia (First Respondent)
Barbara Chapman (Second Respondent)

Representation:

Counsel:
Unrepresented (Applicant)
P W J Gray SC (First and Second Respondents)
M Richardson (First and Second Respondents)
Solicitors:
Unrepresented (Applicant)
Clayton Utz (First and Second Respondents)

File Number(s):

2009/297559

 Decision under appeal 

Jurisdiction:

9111

Citation:

Dye v Commonwealth Bank of Australia [2010] NSWSC 1238

Date of Decision:

2010-10-21 00:00:00

Before:

McClellan CJ at CL

File Number(s):

2009/297559

EX TEMPORE Judgment

1. SACKVILLE AJA: I have before me a notice of motion filed by the applicant which, in effect, seeks to have the hearing set down for next Monday 2 July 2012 adjourned until a future date.

1. The applicant has read an affidavit in support of her application in which she indicates that on 20 June 2012 she contacted the Registry, and informed an officer there that she did not have representation for the hearing as her counsel was overseas.

1. It appears from the affidavit of Ms Noe, read on behalf of the First Respondent ("the Bank"), that the Bank learned of the applicant's intention to seek an adjournment at or about the same time, that is, 20 June 2012.

1. The hearing next Monday was fixed by the Registrar on 5 June 2012. On that occasion, the applicant appeared for herself and the Bank was represented. It appears that the applicant said nothing about the unavailability of counsel on the date allocated for the hearing.

1. The applicant has indicated to the Court today that she has taken no steps between the date the matter was set down for hearing and today to secure legal representation for Monday's hearing. It appears that there has been no solicitor on the record for her since 4 June 2012.

1. The applicant has indicated that her difficulties are associated with a lack of funds. However, there is nothing to indicate that her position is likely to change in the short term or that, for any other reason, she will be able to secure representation on the appeal.

1. The history of the matter that is recounted in detail in Ms Noe's affidavit. Her account indicates that there have been very substantial delays in the prosecution of this appeal.

1. In my opinion, it is undesirable that the appeal be delayed any further. An adjournment would involve additional expense that the Bank, if successful on the appeal, would be unlikely to recover.

1. I should mention that the applicant suggested in argument that there had been some delay in proceedings in the Federal Court. However, any such delay does not seem to me to have any bearing upon whether the appeal to this Court that has been set down for Monday should proceed as scheduled.

1. I indicated in the course of argument today that there may be arguable issues raised by the application for leave to appeal. There is no question that the Court would be assisted if the applicant were to be legally represented on her application for leave to appeal. However, if the matter were to be adjourned, the Bank would suffer unacceptable injustice.

1. The matter should proceed on Monday. The Court will then deal with the arguments of law that are to be determined on the appeal.

1. For those reasons I dismiss the motion to vacate the hearing date on Monday and to adjourn the application for leave to appeal.

1. I order that the motion be dismissed and that the applicant pay the Bank's costs of the motion.

**********

Decision last updated: 04 July 2012