Edelston v Tvarkovski

[2013] VCC 125

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted

AT MELBOURNE

COMMERCIAL LIST
GENERAL DIVISION

Case No. CI-11-04273

GEOFFREY EDELSTON	Plaintiff
v.
ALEX TVARKOVSKI	Defendant

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	25 February 2013
DATE OF JUDGMENT:	25 February 2013 (revised that day)
CASE MAY BE CITED AS:	Edelston v. Tvarkovski
MEDIUM NEUTRAL CITATION:	[2013] VCC 125

REASONS FOR JUDGMENT

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Catchwords:             Practice and procedure – Application to vacate trial date the following day – Application based upon deficiencies in defendant’s discovery and unavailability through ill-health of essential witness – Supporting affidavit provided no explanation for delay in making the application or the unavailability of the witness – Court foreshadowed that proceeding would be dismissed with costs unless the plaintiff was ready to proceed with the trial.   

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A. Strauch	Webb Korfiatis
For the Defendant	Mr M. Lapirow	Davies Moloney

HIS HONOUR:

1The trial of this matter is listed for tomorrow, 26 February 2013. It was listed on that date pursuant to an order I made on 10 August 2012. The plaintiff, by application to the Directions Group on 20 February 2013, sought the adjournment of the trial. The application was made on two bases:

a.the plaintiff says that the defendant’s discovery is inadequate. The defendant has not provided documents in relation to an invoice of Mr Saar Sold and has not fully discovered email correspondence between the parties relating to the matters in issue;

b.an essential witness for the plaintiff, Mr Michael Webb, is not available as he is still unwell following an operation for pancreatic cancer prior to Christmas 2012.

2The issues in dispute between the parties relate to the sum of $800,000 transferred by the plaintiff to the defendant in July 2011. The plaintiff says that the moneys were transferred to be used by the defendant to pay for the deposit in respect of the purchase of a property at Port Douglas. The plaintiff says that the purchase could not proceed and the defendant has refused to repay the $800,000. The defendant says that the $800,000 was paid pursuant to an existing obligation the plaintiff had to Mr Saar Sold, and the whole of the amount has been transferred to Mr Sold. The purchase of the property at Port Douglas did not proceed, but that matter is unrelated to the purpose for which the $800,000 was transferred from the plaintiff to the defendant. These matters and the different assertions by the plaintiff and the defendant are set out extensively in affidavit material filed in the proceeding.

3In respect of the present application, it is noted that:

a.no formal complaint has been made by the plaintiff in respect of the defendant’s discovery until very recently. There was, apparently, correspondence in December 2012 in relation to the invoice from Mr Sold. On 4 February 2013, the plaintiff’s solicitors sought the defendant’s solicitors “urgent reply to this question of whether your client possessed any discoverable documents with regards any alleged business dealings between Saar and our client giving rise to claims for commissions”;

b.the plaintiff’s solicitors, on 13 February 2013, made a request of a Victorian Police Officer in relation to a police investigation into the defendant. In response, the Police Officer referred to “an exhibit seized under warrant”. This was understood to be a computer seized from the defendant, or his wife, and in some way related to the further correspondence between the plaintiff’s solicitors and the defendant relating to the issues in dispute in the proceeding. The responses by the Police Officer were inconclusive, it being suggested that the computer would need to remain with Police for an indefinite time until the contents of the computer had been analysed. In support of the application today for an adjournment of the trial, it has been suggested that the computer may contain further emails which might throw light on the transactions between the plaintiff and the defendant.

4In the further and better particulars of the plaintiff’s statement of claim delivered 2 March 2012, the plaintiff referred to the written communications relied upon, being three emails between the defendant and the plaintiff’s solicitors in July and August 2011 and a number of emails in July and August 2011 principally between the plaintiff’s solicitors and the defendant. These specific communications were apparently the only documents the plaintiff intended to rely upon. In an affidavit sworn on 5 March 2012 the plaintiff asserted, “There are only limited documents, and they have been produced and provided to the defendant. I dispute any assertion that the materials as provided to the defendant are incomplete…The plaintiff’s position is that only very limited written documents exist”. There has been no material filed by the plaintiff to substantiate the matters raised by plaintiff’s Counsel as to the current state of health of Mr Webb.

5It is clear from the further and better particulars of the statement of claim that the plaintiff has intended to rely upon various conversations as constituting the arrangements with the defendant. These conversations between June and August 2011 included conversations involving the plaintiff, the defendant and Mr Webb. Although it is apparent that Mr Webb was therefore likely to have been a witness to be called by the plaintiff in the proceeding, no issue appears to have been raised about the appropriateness of Mr Webb’s firm acting as the plaintiff’s solicitors in the proceeding. Mr Lapirow, defendant’s Counsel, referred to a possible conflict in submissions today.

6Plaintiff’s Counsel, Mr Strauch, informed the Court that although no affidavit material was presently available concerning Mr Webb’s state of health, such material could be provided by the end of the day. He appeared to suggest that the responsibility for the absence of this matter having previously been raised as reason for the trial being adjourned laid with Counsel previously briefed for the plaintiff at the trial. It would appear however that Mr Sutterby, who swore an affidavit in the present application on 21 February 2013, would have been well aware of the position of Mr Webb and of the current state of the proceeding. I note that Mr Sutterby appeared in applications that were previously before the Court on 10 August 2012 and 1 November 2012.

7There has been no attempt in the material before the Court filed by the plaintiff to explain the extensive delays in the proceeding generally, and the delay in making the present application. The proceeding was issued on 6 September 2011. Previous trial dates in April and August 2012 were vacated, the first trial date because the plaintiff did not pay the setting down fee, and the second trial date apparently because issues relating to the plaintiff’s discovery had not been resolved.

8I consider that, in the circumstances, no reasonable basis has been shown by the plaintiff as to why the trial should be further adjourned. The explanation that the defendant’s discovery is deficient, or that access needs to be obtained to the computer held by Victoria Police seem to be matters upon which the plaintiff has only recently relied. If there were substance in those matters, I would have expected an application to have been made for the defendant to provide further and better discovery an earlier date and for there have been some more precise explanation as to what documents the defendant had failed to discover and how they might be relevant in the proceeding. As for Mr Webb’s health position, the matter had not been referred to by the plaintiff’s solicitors. If the information provided by Mr Strauch upon instructions is correct, Mr Webb underwent surgery in December and may still be unfit to attend to give evidence at trial. It is difficult however, in the absence of any material, to make any judgment upon those matters.

9The absence of any explanation as to the plaintiff’s failure to make this application at an earlier time, coupled with the general delays in the proceeding which appear to have been either wholly or largely the responsibility of the plaintiff, leads me to conclude that unless the plaintiff is able to proceed with the trial tomorrow, the proceeding should be dismissed. The plaintiff is still able to reinstitute the proceeding because the claim would not appear to be statute barred. In those circumstances, it may be appropriate to reserve to the plaintiff the right to apply for reinstatement of the proceeding, although that would need to be conditional upon the payment of the defendant’s costs of the proceeding.

10Accordingly, I will stand the matter over to tomorrow morning. Unless the plaintiff is ready to proceed at that time, I would propose to dismiss the proceeding with costs and, if the plaintiff sought such an order, reserve to him the right to apply for reinstatement of the proceeding but only on the condition that the defendant’s costs were paid or if they have not been quantified, for appropriate security to be provided for those costs.

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Certificate

I certify that these 4 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 25 February 2013 and revised on that day.

Dated: 25 February 2013

Catherine Kusiak

Associate to His Honour Judge Anderson