Equititrust Ltd v Newton

[2010] NSWSC 455

CITATION:	Equititrust Ltd v Newton [2010] NSWSC 455
HEARING DATE(S):	7 May 2010
JUDGMENT DATE :	13 May 2010
JURISDICTION:	POSSESSION LIST
JUDGMENT OF:	Davies J
DECISION:	(1) Vacate the hearing dates of 13 and 14 May 2010. (2) Fix the matter for hearing before me on 27 and 28 May 2010. (3) Plaintiff’s costs thrown away by reason of the vacation of the dates to be payable by the Defendant on an indemnity basis.
CATCHWORDS:	PROCEDURE - application to vacate hearing - late application - application by Defendant without legal representation - Defendant with health issues - short adjournment given.
CATEGORY:	Procedural and other rulings
PARTIES:	Equititrust Ltd (Plaintiff) Kristine Lorraine Newton (Defendant)
FILE NUMBER(S):	SC 2009/296415
COUNSEL:	M Young (Plaintiff) Defendant in person
SOLICITORS:	Bransgroves Lawyers (Plaintiff)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
POSSESSION LIST

DAVIES J

13 MAY 2010

2009/296415 EQUITITRUST LTD V NEWTON

JUDGMENT

1 The Defendant, Ms Newton, applies to vacate the hearing dates of 13 and 14 May 2010. It appears Ms Newton first approached the Registrar about vacating the hearing dates on 7 May 2010 and was told to file a Notice of Motion and affidavit and serve on the Plaintiff by 12noon 8 May 2010.

2 No Notice of Motion has been filed but Ms Newton had apparently already prepared an affidavit on 6 May which was forwarded to the Court and to the solicitors for the Plaintiff. Mr Marcus Young of counsel for the Plaintiff did not oppose dealing with Ms Newton’s application.

3 The main reason it was sought to vacate the dates was that Ms Newton had no lawyer acting for her. Additionally, she annexed medical reports suggesting that she was not fit to deal with the case. Both of those medical reports, one from her general practitioner, and one from her psychiatrist, said that she would be incapable of instructing a solicitor or appearing in Court until the end of May 2010. Notwithstanding those reports, Ms Newton did appear and appeared to be capable of arguing for the vacation of the hearing that she sought. I note, however, that the psychiatrist diagnoses her as suffering from an Adjustment Disorder with anxious and depressed mood with symptoms maximum severity. He noted further her need to care for her demented aunt and her 31-year old autistic, epileptic daughter. I was already aware of the latter need because I had been asked to vacate a directions hearing in December 2009 for matters connected with them.

4 The proceedings concern a claim for possession of a property at 42 Blueseas Parade, Lennox Head arising out of loans to the Defendant totalling in the vicinity of $6m made between June 2007 and September 2008. The loans ought to have been repaid by 18 June 2009 but they have not been repaid.

5 The amount currently outstanding is in excess of $7m plus fees and legal costs. Interest is accruing at approximately $130,000 per month.

6 The Statement of Claim was filed on 22 September 2009 and on 6 October 2009 a solicitor, Daniel Massey, from Massey Bailey solicitors filed an appearance for Ms Newton. On 28 October 2009 a Notice of Removal of Solicitor was filed by Ms Newton, such Notice stating that she had terminated the authority of Daniel Massey to act on her behalf.

7 On the same day she filed a Defence which appeared to raise reliance on the Credit Code. It was said that although she signed a declaration that acknowledged the predominant use of the funds was for business purposes that was not so and was known not to be so by the Plaintiff. Accordingly, she says that Plaintiff was required to issue a s 80 Notice.

8 The matter came before me on 2 February 2010 for Directions, the earlier scheduled directions hearing having been vacated by me because of problems Ms Newton had for being present arising from the need to care for her relatives.

9 I had doubts on the basis of the affidavit that Ms Newton had already filed on 27 January 2010 about the reasonableness of the defence but it did not appear to be one which could be struck out as disclosing no reasonable defence. I directed that the parties approach the List Clerk to obtain an early hearing date for the claim. This was done also because of the size of the loan and the rate at which interest was mounting up. It was in neither party’s interest for the matter to be delayed.

10 Ms Newton indicated that she wanted to put on further evidence to defend the matter and said that she would like legal representation the next time the matter was before the Court. I asked her what she had done about legal representation and she said she had been saving. She had been to Legal Aid but they had refused to provide legal aid for her.

11 The parties obtained 13 and 14 May 2010 as the hearing dates for the matter. However, I continued to case manage the proceedings to ensure that they would be ready for hearing.

12 The matter came back before me for Directions on 8 March 2010. Ms Newton had not filed the further affidavit that she had been directed to file. The Plaintiff agreed that she should have 3 further weeks to file it. She had no legal representation at the time.

13 On 6 April 2010 she filed a further affidavit that bore all the hallmarks of having been prepared, or its form advised, by a solicitor.

14 The matter came back before me on 27 April 2010 where Directions were made for the preparation of a tender bundle and the provision of written submissions. Ms Newton appeared for herself again and asked if she could have more time before the matter came on for hearing. She offered no reason for that request which I took to be an application to vacate the hearing date. I informed her that the matter had been fixed for hearing some months before for 13 and 14 May 2010 and the hearing would go ahead on those dates.

15 The affidavit which Ms Newton now relies upon to vacate the hearing details to some extent her relationship with the solicitor Daniel Massey. What it does disclose is the fact that Mr Massey, although ceasing to be her solicitor in October last year in the proceedings, has continued to assist her until late April this year. It also discloses that on 2 occasions Mr Massey appears to have advised the Defendant that she would be unsuccessful in defending the claim and that she should listen to what to Mr McIvor of the Plaintiff was saying to her in discussions.

16 The affidavit also discloses that she recently rang a solicitor in Ballina, Clarissa Huegal, who has agreed to represent her in the proceedings. It was Ms Heugal who advised Ms Newton to apply to vacate the hearing and to obtain 6 weeks to enable her to consider all the documentation.

17 Ms Newton indicated that she was dissatisfied with Mr Massey and the way he had treated her, and she said she wanted a second opinion in relation to his advice that she would not be successful in the proceedings.

18 The Plaintiff opposed the application to vacate and relied on an affidavit of Mr Arthur Taylor, an officer of the Plaintiff. That affidavit discloses that the information I have already mentioned, namely, that the present indebtedness is a little over $7m and interest is accruing at approximately $130,000 per month.

19 Mr Taylor also draws attention to a letter attached to Ms Newton’s exhibit to her affidavit of 6 April 2010 which tends to show that the security property was worth $8m on 23 February 2007. Mr Taylor, who is a Risk Executive of the Plaintiff, notes in his affidavit that property values have decreased since February 2007 and he did not expect that the Plaintiff would be able to obtain $8m from the sale of the property. He annexed a valuation to his affidavit from Landmark White dated 4 November 2009 which advised that the value of the 2 lots “as is” was $4,375,000. The difference between the 2 figures may well arise from the fact that the Alcor and Lucton figure is based on a development application that the Defendant is working to achieve.

20 Had the Defendant been represented by lawyers I would have refused the application to vacate. The mounting interest debt together with the serious doubts about the value of the property would not have justified any adjournment.

21 However, I could not ignore the medical report from Dr Petrov, the psychiatrist, as unsatisfactorily brief as it was. Nor could I ignore the fact that Ms Newton has, in acting for herself, albeit with some background assistance from Mr Massey, and has been refused legal aid. Further, the amount of the debt is a considerable one and, if the Plaintiff is successful, the Defendant will lose her home where she is also caring for disabled relatives. As far as was possible, it was necessary for the Defendant to have legal representation to put forward whatever defence she had to the claim.

22 I had enquiries made of the List Clerk while the matter stood in the list. The List Clerk advised that 2 days were available for hearing a fortnight after 13 and 14 May.

23 In the light of the fact that the solicitor Clarissa Huegal had agreed to act but needed some time to get on top of the material, I considered it appropriate to give the Defendant a further short period of time so that her new lawyer could come to terms with the issues in the proceedings but to keep the delay to a minimum to protect as far as possible the Plaintiff’s position. In that regard I bore in mind that if the valuation attached to Mr Taylor’s affidavit was even close to being correct another 2 weeks was not going to make any difference to what would actually be recovered through the sale of the land. The Plaintiff rightly points out that interest continues to mount. Even putting aside the very high rate at which interest is being charged (about 29% per annum) the practicalities were that a further 2 week adjournment would have a minimum impact on the ultimate recovery the Plaintiff would have if successful on the claim.

24 For those reasons I make these orders:

1. Vacate the hearing dates of 13 and 14 May 2010.

2. Fix the matter for hearing before me on 27 and 28 May 2010.

3. Plaintiff’s costs thrown away by reason of the vacation of the dates to be payable by the Defendant on an indemnity basis.

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