Gilbert v McFarlane

[2025] NSWSC 278

Supreme Court

New South Wales

Medium Neutral Citation:	Gilbert v McFarlane [2025] NSWSC 278
Hearing dates:	10 March 2025
Date of orders:	10 March 2025
Decision date:	10 March 2025
Jurisdiction:	Equity
Before:	Hmelnitsky J
Decision:	[17]
Catchwords:	CIVIL PROCEDURE — Court administration — Sittings and vacations — Where counsel for the plaintiff returned brief shortly before final hearing — Whether court should allow plaintiff’s application to vacate final hearing in circumstances where plaintiff no longer has counsel
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56, 57, 58
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	Marcus Gilbert (Plaintiff/Cross-Defendant) Luke McFarlane (First Defendant/First Cross-Claimant) Teresa McFarlane (Second Defendant/Second Cross-Claimant)
Representation:	Counsel: A J Munro (Defendants/Cross-Claimants) Solicitors: Sydney Law Practice (Plaintiff/Cross-Defendant) Katerina Mihail Solicitor (Defendants/Cross-Claimants)
File Number(s):	2023/33933
Publication restriction:	Nil

JUDGMENT – EX TEMPORE (REVISED)

1. This is an application to vacate the final hearing in this matter which is listed before me for three days commencing on 12 March 2025. The application has been brought on urgently by Mr Ardino who is the solicitor with the conduct of the matter. He has been representing the plaintiff in these proceedings since they were commenced. The dispute concerns the proceeds of sale of a house in Sydney. The house was the family home of the plaintiff and his parents for many years. The second defendant, Teresa McFarlane, is the plaintiff's sister. The first defendant is her husband.

2. At the time of sale, the registered proprietors of the property were the first and second defendant, Luke and Teresa. Without disrespect, I will refer to the parties by their first names, as they themselves have done. Luke and Teresa had been the registered proprietors of the property since 2012. During that period Marcus had also been living in the property with his parents and paying an amount that may or may not have been rent. That is one of the matters in dispute.

3. Marcus had previously been a registered proprietor of the property together with his parents. In circumstances that are the subject of dispute, he relinquished his interest in the property to his parents in 2002. In the 10 years between 2002 and 2012, Teresa and Marcus’s parents used the property as security for a number of loans taken out by them and Marcus for the purpose of conducting a hairdressing business in which Marcus was the principal hairdresser. When that business ceased to operate, the mortgage over the property stood at about $500,000. Luke and Teresa paid out the mortgage, took a transfer of the property, but entered into a deed which granted the parents a life estate. They also allowed Marcus to continue living in the property. Marcus then began to pay the amounts that Luke and Teresa say were rent.

4. The property has been sold and the proceeds of sale, which are approximately $700,000, net various payments such as the costs of sale and the discharge of mortgage, have been paid into Court. The dispute is, therefore, about who among the parties is entitled to those proceeds. The defendants say that they were the registered proprietors and are entitled to the whole of the proceeds of sale. The plaintiff's position seems to be that he was entitled to some or all of the proceeds of sale.

5. The proceedings are ready for hearing. The parties have filed all the evidence upon which they propose to rely. I was informed by Mr Ardino that the plaintiff does not propose to file and serve any further evidence and that the matter is ready to proceed, save for the fact that counsel briefed in the matter returned her brief on 24 February 2025.

6. Counsel briefed for the plaintiff was Ms Dymphna Hawkins. She had apparently been involved in the matter since it was commenced, having agreed to act on a ‘no win no fee’ basis. She was actively involved in the preparation of the pleadings. She drafted the final version of the amended statement of claim. She assisted Mr Ardino in drafting the plaintiff's affidavit-in-chief which is the principal affidavit on which the plaintiff relies. I was informed that Mr Ardino is also engaged on a ‘no win no fee’ basis.

7. The proceedings were listed before the Registrar in Equity in September 2024 for the purpose of obtaining a hearing date. The registrar fixed the matter for final hearing commencing 12 March 2025. Ms Hawkins was immediately notified of those hearing dates and she advised Mr Ardino that she was available for the hearing.

8. During the period between September 2024 and the end of January 2025 Mr Ardino was in regular contact with Ms Hawkins in relation to the preparation of the matter for hearing. During that period Mr Ardino and Ms Hawkins discussed the advisability of briefing senior counsel to lead Ms Hawkins at the hearing. That proposal does not seem to have resulted in the engagement of senior counsel, although, senior counsel was engaged to at least review the pleadings.

9. On the afternoon of Monday 24 February 2025, Ms Hawkins unexpectedly returned her brief in the matter. She informed Mr Ardino that she was unable to prepare the submissions or to prepare for the hearing because she proposed to travel overseas on a personal matter, and she was not due to return until Monday 10 March or possibly Tuesday 11 March 2025. She said that the matter was complex and it would involve a minimum of three or four days of preparation time which she said she could not now give it, given her planned trip overseas. She was apparently apologetic, and advised Mr Ardino that he would simply have to find alternative counsel.

10. Mr Ardino took immediate and appropriate steps to try to engage alternative counsel. He has given evidence of his attempts to do so. The difficulty, it seems, is that the plaintiff is not in a position to engage counsel other than on a ‘no win no fee’ basis. Despite having tried very hard to do so, Mr Ardino has been unable to secure alternative counsel on that basis. I accept his evidence that he has tried hard to find alternative counsel.

11. The fact that Ms Hawkins has returned her brief in the circumstances I have described is a matter of real misfortune. It obviously places the plaintiff and the plaintiff's solicitor, Mr Ardino, in an extremely difficult position. It has been distressing for the plaintiff, who is keen for his case to be determined. Both the plaintiff and Mr Ardino have proceeded for some years now on the basis that Ms Hawkins would be appearing at the hearing. She was briefed to appear on the dates that were allocated for the hearing and she is available to do so. The evidence shows that she will be in the country on the days set down for the hearing.

12. The plaintiff is impecunious. I was informed by Mr Ardino that he receives benefits from Centrelink but otherwise has no income. I was also informed that he suffers from health issues, including psychological distress associated with this dispute. He does not have permanent accommodation of his own and does not have savings or income apart from his Centrelink benefits.

13. The defendants resist the vacation of the hearing date. They point out that the matter is ready for hearing, that the dispute has been on foot for some time, and that the explanation for Ms Hawkins' withdrawal from the proceedings is altogether inadequate. The defendants are of course not really in a position to test Ms Hawkins' excuse for returning the brief, given that the matter has been brought on with such short notice and in circumstances where Ms Hawkins' reasons for returning the brief have been conveyed to the Court through a third party, Mr Ardino.

14. The question of whether or not the Court should vacate the hearing date always involves an evaluative judgment that takes into account the circumstances of the parties and the interest in finalising disputes. However, it is a judgment that must be reached in the light of the overarching principles expressed in ss 56 to 58 of the Civil Procedure Act 2005 (NSW). It is, as I have mentioned, a matter of serious regret that the plaintiff now finds himself without counsel at this point of what has otherwise been a fairly lengthy and no doubt costly dispute. However, it is a significant thing to vacate a hearing that has been listed for so long and in circumstances where all of the evidence has been prepared and which is otherwise ready to proceed.

15. The case was put, understandably enough by Mr Ardino, on the basis that the plaintiff was really seeking a vacation of the hearing date in order to ensure that his dispute is conducted fairly. As Mr Ardino explained, the plaintiff’s circumstances are poor and he is unable to engage counsel otherwise than on a ‘no win no fee’ basis. However, a party does not have an entitlement to be represented on a ‘no win no fee’ basis. I do not know whether Mr Ardino would be able to find someone willing to conduct these proceedings on a ‘no win no fee’ basis at all, even if the hearing is vacated.

16. As matters stand, all of the evidence is on, a court book has been prepared, and everyone is ready for a hearing to proceed, save only for the fact that Ms Hawkins has, for reasons best known to herself, decided not to appear. This makes it difficult for me to reach any other conclusion than that the matter should proceed.

17. I appreciate that my decision places Mr Ardino in a difficult position. Mr Ardino is an experienced solicitor but does not have experience in running matters such as this over several days in the Supreme Court. Nonetheless, in circumstances where he is probably the person who is best able to assist me to understand what the plaintiff's case really is, and where the plaintiff's case has by now been articulated in pleadings and affidavits that have been settled by counsel, it is in the interests of justice that the matter proceed to hearing commencing on 12 March.

orders

18. The orders of the Court will therefore be:

1. Dismiss the notice of motion filed by the plaintiff in Court on 10 March 2025.

2. Reserve the costs of the 10 March 2025 hearing.

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Decision last updated: 27 March 2025