Gabrielle v Abood (No 2)

[2023] NSWCA 28

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Gabrielle v Abood (No 2) [2023] NSWCA 28
Hearing dates:	21 February 2023
Date of orders:	21 February 2023
Decision date:	21 February 2023
Before:	Bell CJ at [1] Kirk JA at [8] Adamson JA at [9]
Decision:	The application for an adjournment is dismissed with costs.
Catchwords:	APPEALS — Procedure — Adjournment — Application not supported by any evidence — Adjournment application dismissed with costs
Category:	Procedural rulings
Parties:	Chakib Carlo Gabrielle (Applicant) Rima Abood (First Respondent) Sean Magnus Wengel (Second Respondent) Michael Craig Brereton (Third Respondent)
Representation:	Counsel: D Allen (Applicant) N Kulkarni (First Respondent) D Radman (Second and Third Respondents) Solicitors: Avondale Lawyers (Applicant) Lane & O'Rourke Solicitors (First Respondent) Grace Lawyers (Second and Third Respondents)
File Number(s):	2022/228004
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Citation: [2022] NSWSC 912 Date of Decision: 8 July 2022 Before: Hammerschlag CJ in Eq File Number(s): 2021/233613

JUDGMENT

1. BELL CJ: This matter, being a summons seeking leave to appeal, was commenced in this Court on 10 October 2022. Late last year it was set down for hearing today. The applicant’s then legal representatives Mr O'Connor and Ms Langford, both of University Chambers, prepared a summary of argument which was filed in the Court and appears in the White Book. An application for a stay pending the hearing of the application for leave to appeal was heard before Macfarlan JA who dismissed the application for a stay.

2. When the matter was called on for hearing this morning, Mr Allen of counsel, instructed by Avondale Lawyers, sought leave to be heard to make an adjournment application. He indicated to the Court that his instructions extended only to the making of that adjournment application. His instructing solicitors, Avondale Lawyers, are not currently the solicitors on the record for the applicant for leave to appeal, the previous solicitors having filed a notice of ceasing to act earlier this year. Mr Allen indicated that his instructing solicitors and he himself had only received instructions to make the adjournment application earlier this morning.

3. On the condition that Avondale Lawyers filed a notice of appearance by 4pm today, leave was given to Mr Allen on behalf of the applicant to make his application for an adjournment of today's hearing. That application was made orally and was not supported by any evidence whatsoever. Mr Allen indicated that his client was prepared to pay $5,000 within 48 hours to meet any costs thrown away by any adjournment. He submitted that the interests of justice required an adjournment so as to allow time for junior and senior counsel to be briefed and to prepare arguments presumably alternative, or additional, to those which had previously been filed in the form of the applicant's summary of argument. He submitted that the only prejudice would be costs but that they would or should be covered by the $5,000 which he indicated his client was prepared to pay within 48 hours.

4. The application for an adjournment was opposed by Mr Kulkarni, who appears for the first respondent to the application for leave to appeal. He referred to Macfarlan JA's interlocutory judgment refusing a stay of proceedings. He also indicated that the proceedings had been set down as long ago as November 2022 and there had been adequate time for preparation, including the need for any change of legal representative. Thirdly, he pointed to prejudice arising from the nature, and in particular the subject matter, of the proceedings being real property in a market that was fluid on account of movements of interest rates and general economic circumstances.

5. The second and third respondents to the appeal are the trustees for sale appointed pursuant to the decision of the primary judge. They have filed what I will describe as a contingent notice of motion in the event that the appeal was to be successful. They are represented by Mr Radman, their solicitor, who pointed out that the offer of $5,000 by way of costs did not appear to cover the costs of the trustees that would be thrown away were the adjournment granted. Mr Allen in reply asserted that the only prejudice to the first respondent would be costs and the anxiety of having the matter put off for another day was simply an unfortunate aspect of litigation.

6. That is not so. When matters are set down in this Court there is an expectation that they will be heard on the day on which they are set down. Matters are set down having regard to the demands of the Court, including other cases and litigants, and it is a significant and inefficient waste of Court resources where matters are required to be adjourned. That is not to say that in a sufficiently meritorious case, adjournment applications will not be entertained but they are typically only entertained and granted where there are cogent reasons for doing so. 

7. In my opinion, no cogent reasons whatsoever have been advanced for the adjournment application which is now sought. In those circumstances, the adjournment application should, in my opinion, be dismissed with costs.

8. KIRK JA: I agree with the orders proposed by the Chief Justice and with his reasons and I note the following. The applicant was legally represented by solicitors and counsel in this application until a notice of intention to cease to act was filed on 31 January 2023. No explanation has been provided for the applicant not having sought to replace his legal team in the three weeks since that notice of intention to cease to act was filed. The applicant has had more than adequate opportunity to prepare his case and to be heard. It is in the interests of justice that this appeal be resolved promptly.

9. ADAMSON JA: I agree with the orders proposed by the Chief Justice and with his Honour's reasons. I also agree with the further observations of Kirk JA.

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Decision last updated: 22 February 2023