Grizonic v Suttor

[2008] NSWSC 914

CITATION:	Grizonic v Suttor [2008] NSWSC 914
HEARING DATE(S):	3 July 2008
JUDGMENT DATE :	1 September 2008
JURISDICTION:	Equity Division Expedition List
JUDGMENT OF:	Brereton J
DECISION:	Order 11 of 5 February 2004 in proceeding 6141/03 stayed. Proceeding 2475/05 dismissed against third defendant. Proceeding 1960/08 stayed.
CATCHWORDS:	PROCEDURE – where plaintiff and defendant were former partners in business ordered by the Court in 2004 to give an account of partnership assets – where parties have sold jointly owned property and moneys have been paid into Court – where proceedings have lengthy history of in excess of 110 interlocutory adjudications and non-compliance of Court directions by parties – where plaintiff no longer legally represented – where length and cost of proceedings is disproportionate to final relief claimed and available – where plaintiff granted postponement of final hearing on two earlier occasions – where plaintiff alleged that he has been precluded by the Court from adducing evidence – where plaintiff left court room on day appointed for hearing – whether account should be stayed – disposition of outstanding proceedings.
LEGISLATION CITED:	(NSW) Civil Procedure Act 2005, ss 56, 57, 58, 59, 60 (NSW) Uniform Civil Procedure Rules, r 46.9
CATEGORY:	Principal judgment
CASES CITED:	Claudio Grizonic v Maurice Blackburn Cashman Pty Ltd [2008] NSWSC 76 Grizonic v Suttor, [2008] NSWSC 900 Grizonic v Suttor, [2008] NSWSC 912 Grizonic v Suttor, [2008] NSWSC 913 Grizonic v Suttor; Grizonic v McDonald [2006] NSWSC 1359 In the Marriage of Trnka (1984) 10 Fam LR 213; (1984) FLC 91-535 In Re Cornish Tin Sands Ltd, Bastard v The Company [1918] WN 377 Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75; [2005] QB 946 Schellenberg v British Broadcasting Coorporation [2000] EMLR 296 Wade v Trnka [2006] NSWSC 1097 Wade (formerly Trnka ) v Trnka (1996) 135 FLR 198; (1996) FLC 92-711 Wallis v Valentine [2002] EWCA Civ 1034; [2003] EMLR 8
PARTIES:	6141/03 Claudio Grizonic (plaintiff) Suzanne Ranken Suttor (first defendant) Find a Flat Pty Ltd (second defendant) 2475/05 Claudio Grizonic (plaintiff) Geoffrey McDonald (first defendant) Paul Leroy (second defendant) Suzanne Suttor (third defendant) 1960/08 Claudio Grizonic (plaintiff) Suzanne Ranken Suttor (first defendant) Rodney Ranken Suttor (second defendant) Find a Flat Pty Ltd (third defendant)
FILE NUMBER(S):	SC 6141/03; 2475/05; 1960/08
COUNSEL:	Mr C Grizonic (in person) (plaintiff) Mr A Jungwirth (D1,2 in 6141/03), (D3 in 2475/05), (D1, 2, 3 in 1960/08) Ms M Campbell (D1, 2 in 2475/05)
SOLICITORS:	Mr Mark Gallego (D1,2 in 6141/03), (D3 in 2475/05), (D1, 2, 3 in 1960/08) Yates Beaggi Lawyers (D1, 2 in 2475/05)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EXPEDITION LIST

BRERETON J

Monday, 1 September 2008

6141/03 Claudio Grizonic v Suzanne Ranken Suttor & 1 Or
2475/05 Claudio Grizonic v Geoffrey McDonald & 2 Ors
1960/08 Claudio Grizonic v Suzanne Ranken Suttor & 2 Ors

JUDGMENT

1 HIS HONOUR: The plaintiff Mr Grizonic, who was born in 1950, and the first defendant Ms Suttor, who was born in 1942, commenced to cohabit in about 1984. In 1985 they purchased 9 Magdala Road, East Ryde (“the East Ryde Property”) as tenants in common for a price of $94,000. Ms Suttor contributed $14,000, and Mr Grizonic $5,000 (which he borrowed from the National Australia Bank); the balance purchase price was raised on mortgage loan from Westpac. They refinanced in 1991, and again in or about 1996. In 1998, Ms Suttor inherited about $135,000 from her father. During their relationship, Mr Grizonic and Ms Suttor were partners in the operation of a restaurant, called Da Valentinos, at Crows Nest.

2 In September 2003, Mr Grizonic left the East Ryde property, and they finally separated in about October 2003. Ms Suttor remained in the East Ryde property, paying the rates and outgoings and some but not all of the mortgage instalments. On 8 December 2003, Mr Grizonic commenced proceedings 6141/03 by filing a summons claiming the winding up of the restaurant partnership and the appointment of trustees for sale of the East Ryde property.

3 On 19 December 2003, at a time when both parties were legally advised, they executed a document entitled “Heads of Agreement”, which relevantly provided as follows:

1. The property known as 9 Magdala Road, East Ryde (“the property”) is to be sold by auction. The parties will use their best endeavours to have such auction occur within eight weeks of the date of this agreement.
2. From the proceeds of the sale of the property the following payments will be made:
(i) Payment of any outstanding mortgage to RAMS Home Loans.
(ii) Payment of all agents’ fees and fees incidental to the sale of the property.
(iii) Payment of any outstanding council/water rates and other outstanding charges.
(iv) 50% of the proceeds to the plaintiff and 50% of the proceeds to the first defendant.
(v) From the proceeds given to the plaintiff there is to be paid to the first defendant a sum equal to 50% of costs incurred in repairing the property up to a limit of $5,000.
3. The business known as Da Valentinos (“the business”) is to be sold. From the proceeds of the sale of the business there is to be paid:
(i) All outstanding accounts incurred on behalf of the partnership;
(ii) 50% of the proceeds to the plaintiff and 50% of the proceeds to the first defendant.
(iii) From the proceeds given to the first defendant there is to be paid to the plaintiff a sum equal to 50% of partnership’s debts paid by the plaintiff from his own personal funds.
4. Each party will enter into a deed releasing the other from any claim under:
(a) Partnership Act;
(b) Property (Relationships) Act 1984;
(c) Family Provision Act.
5. The parties consent to orders 1, 2, 3 and 5 of the Short Minutes of Order attached to this Heads of Agreement.
6. That the plaintiff be permitted to draw $1,000 per week from the takings of the business and the first defendant be permitted to draw $450 per week from the takings of the business.
7. That the matter be relisted before the vacation judge in the week commencing 22 December 2003.

4 The Short Minutes referred to in paragraph 5 of the Heads of Agreement provided as follows:

1. That the bank account known as Da Valentinos at the Commonwealth Bank (Crows Nest branch), … be operated by the plaintiff and first defendant as a joint account with both parties required to sign withdrawals upon that account.
2. That both the plaintiff and first defendant be restrained from making any withdrawals from Commonwealth Bank account number … until all such steps as are necessary for such account to be operated on a “both parties to sign” basis have been undertaken.
3. That both the plaintiff and first defendant are to, by 5.00pm on Monday 22 December 2003, take all steps necessary to have Commonwealth Bank account number … operate on a “both parties to sign” basis.
5. That the plaintiff and/or the first defendant deposit all takings from Da Valentinos restaurant into Commonwealth Bank account number … and be otherwise restrained from taking, using or dealing with the takings of the Da Valentinos restaurant except as in accordance with the ordinary course of business of the restaurant.

5 The Court noted the Heads of Agreement, made orders in accordance with paragraphs 1, 2, 3 and 5 of the Short Minutes, and adjourned the proceedings to the vacation judge.

6 Meanwhile, Mr Grizonic formed the view that Ms Suttor was not complying with the orders and was preventing him from operating the business, and on 13 January 2004 he filed a motion claiming orders setting aside the Heads of Agreement and Consent Orders of 19 December. On 5 February, Young CJ in Eq declared that the restaurant partnership was dissolved upon the filing of the summons on 8 December 2003, and made orders in accordance with paragraphs 1 to 11 of Short Minutes (set out below), and that the costs of all parties to date be paid out of the assets of the partnership. The Short Minutes were as follows:

1. David Levi and Ryaed Tayeh be appointed receiver and manager of the restaurant business known as “Da Valentinos”, trading from premises located at 69 Willoughby Road, Crows Nest, NSW, conducted by the plaintiff and the first defendant in partnership.
2. The receiver and manager have the power to carry on the said partnership business and be given powers in relation to the said business as are given to a liquidator pursuant to the provisions of s 477 of the Corporations Act .
3. The receiver and manager have the power to employ such person or persons to manage the said business and at such salary as the receiver considers appropriate.
4. The receiver and manager be authorised in addition to the powers he or she may have apart from these orders to:
(a) sell the said restaurant business upon the terms and conditions as he sees fit;
(b) invest the proceeds of any sale of the partnership business in any mode of investment permitted by law for the investment of trust funds pending the determination of the parties’ entitlement to such proceeds.
5. The plaintiff and the first defendant be at liberty to purchase from the receiver a partnership asset.
6. Each of the plaintiff and the first defendant deliver:
(a) all assets of the partnership in his or her custody, possession, or control or power to the receiver and manager within 24 hours of the making this order;
(b) all credit card payments, slips, batches, bills or other evidence of any moneys paid by customers of Da Valentinos restaurant and all invoices in respect of the business both paid and unpaid that are in his or her custody, possession, control or power to the receiver or manager within five days of the making of this order;
(c) to operate with the receiver and manager in the care and disposal of any asset of the restaurant business and do all such acts and things and sign all such documents as may be necessary to transfer any bank account authority and any liquor licence or other licence relating to the said restaurant business to the receiver and manager or his or her nominee within such time as the receiver and manager requests.
7. Each of the plaintiff and the first defendant refrain from doing any act or thing which may endanger the said partnership business.
8. Each of the plaintiff and the first defendant being restrained from taking, using or dealing with the takings of the said partnership business.
9. Grant the parties and the receiver and manager liberty to apply on three days notice.
10. An account be taken and an enquiry be held as to:
(a) all the dealings and transactions of the said restaurant partnership and of the said partners and either of them in relation to the said partnership;
(b) what are the assets and liabilities of the said partnership;
(c) what are the respective interests of the said partners in the said assets.
11. The receiver and manager receive such remuneration as is agreed between the plaintiff and the first defendant and the receiver and manager and in default thereof by a Master in the Equity Division.

7 On 24 February, Mr Grizonic filed an amended summons, and a notice of motion seeking the appointment of trustees for sale of the East Ryde property. The hearing of that application commenced before Windeyer J on 26 February 2004, but his Honour recused himself on 27 February, following which the matter proceeded before Campbell J, who made orders pursuant to (NSW) Conveyancing Act 1919, s 66G, appointing Geoffrey McDonald and Paul LeRoy as trustees of the East Ryde property, and authorising them to charge at a rate not exceeding $450 per hour, the total sum not exceeding $7,500, to be deducted from the proceeds of sale. In the course of the proceedings, Mr Grizonic abandoned an application for an order restraining the receivers of the restaurant from selling it to anyone other than him.

8 On 7 May 2004, the Registrar made orders for the filing of the defendant’s evidence by 28 May and the plaintiff’s evidence by 18 June. On 14 July 2004, in the course of disposing of a number of motions that had been filed, Young CJ in Eq observed:

The order made by me by consent on 05 February provides for accounts. That is to be understood in the normal sense, that is, accounts under the rules if the parties cannot agree otherwise. The learned registrar proceeded on that basis and he was correct to do so.

9 On 5 August 2004, the Registrar made orders as follows:

1. Directions that the first defendant shall on or before 31 August 2004 file and serve on the plaintiff:
(a) Her detailed account verified by her affidavit of all the dealings and transactions of the partnership the subject of these proceedings and of the partners and each of them in relation thereto from the commencement of the partnership up to and including 5 February 2004. Such account shall specify in respect of each payment or receipt of each payment or receipt the date and amount thereof, to whom the amount was paid and the purpose or account for or to which the amount was paid or received as the case may be.
(b) Her detailed statement of what she claims to be:
(i) The assets and liabilities of the said partnership as at 5 February 2004.
(ii) The respective interests of the partners therein having regard to the said liabilities and all other relevant matters. The said statements of assets and liabilities respectively shall specify in respect of each item its nature and its value or amount and shall clearly identify and describe each item.

2. Direction that the items of each said account and of each statement shall be numbered consecutively.
3. Direction that the plaintiff be at liberty within 30 days after service upon him of the said accounts and statements to apply to the Master, Equity Division to examine the first defendant viva voce or upon interrogatories in respect of the said accounts and statements.
4. Direction that the plaintiff within 30 days after service upon him of the said accounts and statements or within 30 days of the conclusion of the examination of the defendant referred to in direction 3, have liberty to file and serve upon the plaintiff his surcharges, falsifications and objections (if any) thereto.
5. Direction that all vouching be done out of court before the matter being relisted.
6. Liberty to either party to have the matter relisted for the purpose of fixing a date to proceed upon the enquiry after compliance with the foregoing directions upon seven days notice.
7. Direction that the evidence to be used in the said enquiry be oral evidence.
8. Liberty to apply.

10 It should by now be apparent that what remained in the proceedings was the taking of partnership accounts.

11 On 1 October 2004, Garry Michael Hogden, a Chartered Accountant retained by Ms Suttor, swore an affidavit in which he concluded that as at 5 February 2004 the partnership had a net deficiency of $137,777; and that the equity accounts of the partners were Ms Suttor +$15,515, and Mr Grizonic -$153,292.

12 The s 66G trustees sold the East Ryde property. On 21 October 2004, Mr Grizonic filed a motion returnable on 28 October claiming orders that the s 66G trustees be restrained from paying the proceeds or any portion of them to Ms Suttor. On 28 October 2004, McDougall J inter alia noted the agreement of Mr Grizonic and Ms Suttor that the s 66G trustees may retain out of the net proceeds of the property the sum of $80,000 on account of their costs and expenses of sale, remuneration and other costs incurred by them as trustees, to be held in their solicitors’ trust account until further order of the Court, pending the determination of the amount of the trustees’ entitlements and without prejudice to their right to seek an increase in the amount of remuneration then fixed at $10,000. Further provision was made in respect of this fund, and the balance proceeds of sale, by orders made by consent by the Registrar on 5 November 2004. Eventually, net proceeds of $85,000 were deposited into a controlled moneys account, originally with Mr Grizonic’s then solicitors.

13 On 26 November 2004, McLaughlin M appointed Friday, 10 December 2004 before the Registrar for the return of any notice of motion that might be filed by Mr Grizonic seeking relief with respect to any alleged inadequacy on the part of Ms Suttor in complying with the directions regarding the taking of an account.

14 On 5 January 2005, Mr Grizonic commenced proceedings 20002/2005 in the Common Law Division against Ms Suttor, her brother and Find-a-Flat Pty Ltd. He filed an amended statement of claim on 10 June 2005. The gravamen of his claim was that Ms Suttor had misappropriated funds of the partnership, or proceeds of loans raised on security of the East Ryde property, and procured for the benefit of her company the third defendant a web site, said to be very valuable, which she was bound to procure if at all for the partnership. Mr Grizonic claimed the funds allegedly misappropriated from the restaurant partnership, and half the value of the business of the third defendant and its web site.

15 On 8 March 2005, Mr Grizonic commenced proceedings 1826/05 against the receivers, Ms Suttor and Find-a-Flat, claiming an order revoking the appointment of the receivers and appointing himself as administrator of the partnership.

16 On 15 April 2005, Mr Grizonic instituted proceedings 2475/05 against the s 66G trustees and Ms Suttor, in which he advanced complaints that the trustees had delayed in selling the East Ryde property, and sold it at a lower price than would have been obtained but for their alleged breaches of duty, and claimed restitution to the trust estate of the amount of the loss. (In fact, the trustees had ultimately sold the property to Mr Grizonic).

17 On 12 August 2005, the remuneration of the receivers and managers was fixed in the sum of $122,098 plus GST.

18 On 9 February 2006, Mr Grizonic entered into a personal insolvency agreement, which established a fund comprising the net proceeds from three suits in the Court – first, proceedings 6141/03 (the partnership proceedings); secondly, proceedings 2475/04 (the proceedings against the s 66G trustees); and thirdly, proceedings which he had brought against his former solicitors Maurice Blackburn Cashman – to the extent sufficient to pay Mr Grizonic’s creditors 100 cents in the dollar in respect of their provable debts.

19 On 4 May 2006, Windeyer J dismissed with costs an application by Ms Suttor seeking an order that proceedings 6141/03 be stayed until further order, the basis of the application being that Mr Grizonic had entered into a personal insolvency agreement and not disclosed all of his assets. A similar motion in proceedings 20002/05 was dismissed by consent on 24 May 2006.

20 On 1 December 2006, Campbell J, in proceedings 2475/05, made an order that Mr Grizonic give security for the costs of those proceedings, which were stayed until security was given [Grizonic v Suttor; Grizonic v McDonald [2006] NSWSC 1359]. Campbell J’s order for security for costs was founded on the view that in light of the personal insolvency agreement, and being unsatisfied that any benefit of the action against the s 66G trustees would ultimately flow to Mr Grizonic rather than his creditors, he was in substance not really suing for his own benefit but for the benefit of others. Also, in proceedings 6141/03, his Honour fixed the remuneration of the s 66G trustees as not to exceed $76,942.12.

21 On 13 March 2007, in proceedings 2475/05, I directed that the security ordered to be given by Campbell J on 1 December 2006 be given in the form of cash or some other form acceptable to the Registrar by 27 March 2007; and on 2 April 2007, Hammerschlag J ordered that proceedings 2475/05 be dismissed as against the first and second defendants (the s 66G trustees) with costs, security not having been provided.

22 Meanwhile, on 14 March 2007, the Registrar fixed the partnership proceedings 6141/03 for hearing to commence on 17 July 2007 before Rein AJ (as his Honour then was) for four days, and appointed 3 May 2007 before Palmer J for pre-trial directions. It seems unlikely that anyone could then have appreciated that what the proceedings were was the taking of partnership accounts, since there had been no substantial compliance with the various directions for preparation of accounts and, as would subsequently become self-evident, there was no way in which the taking of accounts was then ready to proceed.

23 On 20 April 2007, Hamilton J, by consent as between Ms Suttor and the s 66G trustees, authorised the trustees to draw on the fund of money held by their solicitors in satisfaction of their claims for remuneration in the sum of $76,942.12, and restrained Mr Grizonic and Ms Suttor until further order from dealing with or charging the funds held pursuant to the orders made on 5 November 2004.

24 I hasten to add that what I have set out so far comprises but some of the more significant aspects of the interlocutory proceedings to that point; there were many more applications and many more orders, including to set aside subpoenas and to vary the trustees’ remuneration, and to have the trustees removed. Some idea of the scale of activity can be gauged from the circumstance that the record of proceedings 6141/03 reveals that by 20 April 2007 there had been 97 adjudications.

25 On 3 May 2007, proceedings 6141/03 were before Palmer J for pre-trial directions; each of Mr Grizonic and Ms Suttor was represented by a solicitor. His Honour’s directions noted that the matter was fixed for hearing for four days on 17 July 2007 before Rein AJ, and required each party by 13 July to deliver to the trial judge and the other party a list of affidavits to be read and deponents to be cross-examined, and a bundle of documents and a chronology, together with original affidavits, objections, statements of issues, outlines of contentions and lists of authorities. His Honour granted all parties liberty to apply on 24 hours notice, directed that Mr Grizonic file and serve any further affidavits by 15 June, that the plaintiff serve any affidavits in response to Ms Suttor’s motion for security for costs by 11 May, and adjourned the hearing of the motion for security for costs to 17 May before the Duty Judge.

26 On 15 June 2007, the Registrar dismissed Ms Suttor’s motion for security for costs of proceedings 6141/03, with costs, and noted that the matter remained listed for hearing before Rein AJ commencing on 17 July. (Another motion for security for costs, in proceedings 20002/05, was also returnable on 17 May 2007; it was adjourned from time to time pending developments in proceedings 6141/03, has never been heard, and should be regarded as having lapsed).

27 Shortly before, and on, 17 July 2007, Ms Suttor served several additional affidavits in the partnership proceedings. Mr Grizonic applied for an adjournment of the hearing. On 17 July, Rein AJ made orders as follows:

1. Vacate hearing dates 17-20 July 2007.
2. Stand over for directions 19 July 2007 at 10.00am before me.
3. Grant parties liberty to apply to my associate to vary that time for directions.
4. Grant leave to parties to access subpoena material in court.

28 On 19 July, Rein AJ made further directions, as follows:

1. By agreement, grant leave to plaintiff’s solicitor to uplift and photocopy documents from subpoena packet 3 on basis of plaintiff’s solicitor’s undertaking to return documents to registry by 4.00 pm 20 July 2007.
2. By consent, make orders and directions in accordance with the Short Minutes of Order as amended, initialled and dated with today’s date in the top right hand corner.
3. By consent, direct that a mediation take place.
4. Order each party’s solicitor to provide to the other party’s solicitor the names of three proposed mediators by 4.00 pm 23 July 2007.
5. Parties to reach agreement on the identity of mediator by 26 July 2007.
6. Mediation is to take place after 5 September 2007 within September 2007.
7. In the event that the parties are unable to agree on the identity of a mediator, the matter can be relisted on two days’ notice before the Duty Judge in Equity.
8. Plaintiff to provide an outline of submissions on which it proposes to rely at the mediation on or before 13 August 2007.
9. Defendant to respond by providing its submissions in reply by 27 August 2007.
10. By consent, make no order as to costs regarding the vacation of the hearing.
11. If the matter is not resolved before 5 November 2007, direct each party’s legal representative to serve on their client a notice specifying:
(a) the amount of costs incurred by that party to the date of the notice.
(b) an estimate of the largest amount inclusive of costs that the party may be expected to pay if unsuccessful in the proceedings.

29 The short minutes, in accordance with which orders were made, provided as follows:

1. Direct that on or before 5 September 2007 the plaintiff and the first defendant prepare a bundle of documents (“the agreed bundle”) comprising:
(a) Photocopies of bank statements of cheque account number … in the name of Suzanne Rankin Suttor and Claudius Grizonic trading as “Da Valentinos” held at the Commonwealth Bank of Australia, Crows Nest branch for the period 7 January 1998 to 5 February 2004.
(b) Photocopies of all cheques and cheque butts of the account referred to in paragraph 1(a) herein and which the plaintiff and the first defendant shall severally select.
(c) Photocopies of cash books of the partnership business Da Valentinos for the period 1 July 1999 to 30 September 2003.
(d) Photocopies of all partnership and/or profit and loss statements and itemised category summary reports and general ledger/journal statements (whether prepared or drawn up by the plaintiff and the first defendant or either of them or by any accountant instructed by the plaintiff and the first defendant or either of them) and which the plaintiff and the first defendant shall severally select.
2. Direct that with respect to the agreed bundle:
(a) Such shall be arranged in chronological order with respect to each discreet category of documents and paginated so that each such category shall be separated by a guide card which identifies by index the documents which it precedes.
(b) There shall be four copies of the agreed bundle prepared and that the plaintiff and the first defendant shall each retain a copy for their own use and that the remaining two copies shall be retained by them to be tendered at any subsequent hearing (one being an exhibit and the other a judge’s working copy).
(c) That the costs of preparing the agreed bundle shall be borne by the plaintiff and the first defendant equally.
3. Direct that on or before 5 October 2007 the plaintiff and the first defendant shall serve on the other a complete statement of their allegations with respect to any wrongful misappropriation or misapplication or retention of any partnership moneys which the one alleges against the other during the operation of the partnership business known as Da Valentinos and that each such statement shall:
(a) Shall be numbered consecutively and in an order (whether chronologically or by reference to a particular category) as is appropriate.
(b) Shall identify the transaction in dispute by indicating the date and amount thereof, the nature of the transaction in question, the precise grounds on which the particular transaction is impugned and, where a party seeks to rely upon a document to impugn the particular transaction, such document must be precisely identified as to its date and author and, where such document has not been included in the agreed bundle, a legible copy of the document be annexed to the statement.
(c) Each such statement shall be verified by the affidavit of the party making the statement.
4. Direct that on or before 5 November 2007:
(a) The plaintiff and the first defendant shall serve upon the other a statement in response to the statement served in accordance with paragraph 3 above and that such statement in response shall:
(i) deal with each item in the statement it answers, setting out the item as it appears in the statement followed by the party’s response to it.
(ii) answer each item in the statement it answers without evasion.
(iii) be verified by affidavit of the party making the statement in response.
5. Order that orders 1 and 2 made by Registrar Berecry on 5 August 2004 be vacated.
6. Stand the proceedings over to the Registrar on 5 December 2007 at 9.30 am.
7. Parties to have liberty to apply.
8. Grant leave to the parties to issue subpoenas returnable on 1 August 2007 at 9.00 am before the Registrar.
9. Direct that each of the plaintiff and the first defendant serve upon the other by 5 November 2007:
(a) A list of the affidavits (or part of the affidavit) issued up until the time upon which they intend to rely.
(b) Any further affidavits upon which they intend to rely in support of the contentions raised by them in the statements referred to in paragraphs 3 and 4 above.

30 At this time, both parties remained legally represented.

31 Although it seems that on 23 July 2007 the parties agreed that the Hon Terence Cole QC was an appropriate mediator, nothing further happened in implementation of Rein AJ’s directions. The record of proceedings reveals that by 4 September 2007, the matter had had 107 adjudications.

32 On 24 September 2007, Ms Suttor filed a motion in proceedings 6141/03, claiming dismissal of the proceedings for want of prosecution, and alternatively security for costs, returnable on 27 September 2007, when it was adjourned to 12 October. On 25 September 2007, Mr Grizonic filed a motion in proceedings 6141/03 claiming an order vacating the order of 5 February 2004 for an account to be taken of the restaurant partnership, and that those proceedings be joined with the common law proceedings 20002/05. On 12 October, the Registrar adjourned the motions to 19 October. On 16 October, Mr Grizonic filed a further motion in proceedings 6141/03, claiming an order that the Heads of Agreement of 19 December 2003 be enforced, alternatively that Ms Suttor pay him 50% of the partnership debts of Da Valentinos, and that all outstanding notices of motion “be joined”. That motion was made returnable also on 19 October. In the Associate Justices’ call over on 19 October 2007, there were no dates available suitable to counsel, and the proceedings were adjourned to the next Associate Justices’ call over.

33 On 19 November 2007, Ms Suttor filed a motion claiming expedition of the hearing, which brought the matter before me in the expedition list on 30 November 2007. Mr Grizonic appeared in person, but indicated that he was still legally represented. Having reviewed the file, the multiplicity of interlocutory proceedings to date and the apparent absence of progress towards final resolution, I appointed 11 December 2007 for pre-trial directions, directed that all motions currently outstanding be listed before me that date, and indicated that I would expect the plaintiff’s legal representative to be present and in a position to assist with identification of the remaining issues on that occasion.

34 On 11 December 2007, both parties were legally represented. Mr Grizonic’s then lawyer was not in a position to deal with any of the motions. In the course of the hearing it became evident that the bundle of documents directed by Rein AJ had not been prepared, and that in substance nothing had progressed in respect of his Honour’s directions. On behalf of Mr Grizonic it was said that this was because he was seeking to join the common law proceedings 20002/05 with the equity proceedings 6141/03. I made the following directions:

1. Direct that by 14 December 2007 the defendants lodge with my associate a copy of each affidavit said to comprise the detailed verified accounts referred to in paragraph 1(a) and detailed statement referred to in 1(b) of directions made on 5 August 2004, together with a document identifying those affidavits, and to which paragraph of that direction they relate, and serve a copy of that document on the solicitors for the plaintiff.

2. Direct that by 14 January 2008 the plaintiff file and serve notice of his surcharges falsifications and objections.

3. Stand over to Friday 22 February 2008 for hearing of the first defendant’s Notice of Motion filed 19 November 2007, the plaintiff’s Notice of Motion filed 16 October 2007, the first defendant’s Notice of Motion filed 24 September 2007, and the plaintiff’s Notice of Motion filed 25 September 2007.

4. Direct that subject to the concurrence of the Chief Judge at Common Law [which was subsequently obtained] proceedings 20002/05 be also listed before me on 22 February 2008.

5. Direct that by 8 February each party that is an applicant in a Notice of Motion lodge with my associate and serve on the other a document listing the orders which that party seeks on 22 February, the evidence to be relied on at the hearing of that party’s motion and an outline of that party’s submissions, together with a bundle of copies of the affidavits on which that party relies on the motions.

6. Direct that by 15 February each party that is a respondent to a Notice of Motion lodge with my associate and serve on the other a document identifying which if any of the orders sought by the other side are consented to, opposed and any alternative orders it proposes, a list of the affidavit evidence which it relies on on the motions and an outline of its submissions, together with a bundle of copies of the affidavits on which that party relies on the motion.

35 Mr Grizonic’s former solicitor gave notice of intention of ceasing to act on 8 February 2008.

36 Mr Grizonic’s proceedings against Maurice Blackburn Cashman were resolved by a judgment against Mr Grizonic on 13 February 2008 [Claudio Grizonic v Maurice Blackburn Cashman Pty Ltd [2008] NSWSC 76, (Barr J)].

37 On 14 February 2008, Mr Grizonic filed a further motion in proceedings 6141/03 claiming various declarations of breaches by Ms Suttor of her partnership duties, orders that she pay the costs of the partnership receivers, the s 66G trustees and of the proceedings, and leave to file a statement of claim claiming damages against her. On 22 February, he appeared with a friend, Ms Wade, to whom I granted leave to represent him on that occasion. Although it was opposed by counsel for Ms Suttor, as it seemed to me that the common law proceedings 20002/05 in substance asserted a claim on behalf of the partnership against the defendants which was inextricably interwoven with the issues that would arise on the taking of the partnership accounts, I acceded to Mr Grizonic’s application that they be transferred to the Equity Division, and ordered that they be heard together with the Equity proceedings and that evidence in one be evidence in the other; upon transfer to Equity they became proceedings 1960/08. I dismissed Ms Suttor’s application for dismissal of proceedings 6141/03 for want of prosecution, noting that the delay of which Ms Suttor complained since Rein AJ’s orders in July 2007 had to be seen in the context of what had preceded it - including various defaults by Ms Suttor in complying with directions in respect of filing accounts, and the circumstance that her late service on the first day of the hearing before Rein AJ of additional evidence provoked the vacation of that hearing. I dismissed Mr Grizonic’s application to revoke the order for the taking of accounts, as it seemed to me that only on the taking of accounts could all the outstanding issues be resolved. I also dismissed Mr Grizonic’s application for the enforcement of the Heads of Agreement and the alternative order that Ms Suttor pay 50% of the partnership debts, all those issues now being subsumed in the taking of accounts. I refused Ms Suttor’s application for security for costs; notwithstanding the observations of Campbell J, referred to above (at [20]), I thought it not impossible that there might be some surplus available for Mr Grizonic and that in those circumstances it could not be said that he was manifestly suing only for the benefit of others [Grizonic v Suttor, [2008] NSWSC 900].

38 I then discussed with the parties how the matter could be progressed by identifying and focussing on the issues in dispute, with the intention of identifying discrete issues for resolution. One major reason for this was that if, as appeared likely, Mr Grizonic were to remain unrepresented, it would be easier for him to focus on a specific identified issue that to be required to address a full accounting process. For that purpose, I made directions:

1. That by Tuesday 26 February 2008 the plaintiff serve on the defendant, and deliver a copy to my associate, a list specifying concisely each issue in dispute that the plaintiff wished to agitate concerning the affairs of the partnership and the partnership accounts.
2. That the proceedings be adjourned to Friday, 29 February 2008, for further directions.

39 Taking a broad view of the respective lack of success of each party in the motions he and she had brought, I made no order as to costs in respect of the motions dealt with that day, to the intent that each party bear its own costs. In order to prevent further outbursts and distractions of interlocutory activity, I directed that no party file any notice of motion without the prior leave of the Court, to be sought from me.

40 Mr Grizonic and Ms Wade provided a lengthy statement in purported compliance with the direction for a list specifying concisely each issue in dispute that Mr Grizonic wished to agitate concerning the affairs of the partnership. On 29 February, I provided to the parties a draft list of issues distilled from that statement, and explained why I considered that some of the matters raised in the statement could not be agitated on the taking of accounts – particularly, issues pertaining to the conduct of the receivers and the s 66G trustees, which lay against third parties and not against Ms Suttor – as the transcript of that day records. This list of issues was as follows:

1. Whether the website and business of Find A Flat is an asset of the partnership.

2. Whether Find A Flat was entitled to consultancy fees.

3. Whether Suttor has received any and if so what amount of takings from the restaurant that has not been brought to account in her accounts.

4. Whether the 1993 refinance was a partnership transaction and if so whether Suttor applied any and if so what part of the proceeds for her own benefit.

5. Whether Suttor was obliged to work full time in the partnership business and if so whether she defaulted in respect of such obligation.

6. Whether Suttor was obliged to account to the partnership for profits from Table for Eight and if so whether she has failed to do so.

7. If yes to any of the foregoing, what adjustment is required to Suttor’s account.

8. How should the costs of the s 66G application, and the application for removal of the trustees, be borne.

41 I directed that by 14 March each party serve on the other and lodge with my associate that party’s proposed list of issues for determination, indicating what issues that party proposed be added to the draft list, and what issues that party proposed be deleted. I adjourned the proceedings to 18 March for further mention.

42 On 18 March 2008, as the transcript of that day records, as a result of the submissions made on behalf of Mr Grizonic, I added two additional issues to the list:

9.1 Whether Ms Suttor is liable to account to Mr Grizonic, and if so how much, in respect of house mortgage payments made by Mr Grizonic, and/or an occupation fee in respect of her occupation of the house.
9.2 Whether the 2003 distribution of $11,000 was in fact paid to or for the benefit of Mr Grizonic.

43 I directed that by 1 April each of Mr Grizonic and Ms Suttor swear, file and serve an affidavit setting out their current assets, liabilities and resources and an estimate of the value of each of them. This was because I was concerned that, in light of the apparent financial position of the parties, the utility of the proceedings was dubious. I also directed that by 1 April each party lodge with my associate and serve on the other a document outlining that party’s submissions on each of issues 2, 5, 6, 8, 9.1 and 9.2, such submissions to be referenced to the affidavit and other evidence and if it were sought to adduce further evidence on those issues, an indication of what that further evidence would be. I selected those issues on the basis that they were the less complex ones, and Mr Grizonic being unrepresented, a select group of discrete issues on which attention could be focussed would assist to progress the matter, and clear away some of the dispute, without unduly straining his ability to deal with the matter.

44 Ms Suttor swore an affidavit on 7 April 2008, disclosing assets said to be worth $184,000, liabilities of $182,000, monthly income of $2600 and monthly expenses of $2599. Mr Grizonic swore an affidavit on 2 April 2008 disclosing as his only substantial asset a fund of $85,000 “partnership money” (being the balance proceeds of sale of the East Ryde property) held by his former solicitors, liabilities of $606,000 for legal bills and $100,000 partnership debts, income of $509 per fortnight and rent and utilities outgoings of $260 per fortnight. Each party lodged and exchanged material in compliance with that direction, and on 8 April 2008, I appointed Friday, 2 May 2008 for hearing of issues 2, 5, 6, 8, 9.1 and 9.2. I indicated, not for the first time, that additional oral evidence in chief would not be permitted.

45 Despite my direction of 22 February 2008 about filing of further motions, Mr Grizonic on 4 April filed a motion claiming an injunction restraining Ms Suttor from transferring or encumbering any of her property, or drawing more than $1,000 a week for general living expenses, and that $85,000 held in the controlled money account of his former lawyers (the net remaining proceeds of sale of the East Ryde property) be paid into Court. Counsel for Ms Suttor, without admission, did not seriously oppose the relief sought; I hasten to add essentially on the basis that as Ms Suttor proposed to do no such thing, it would save time and costs not to oppose it. Accordingly, I ordered that Mr Grizonic do all things necessary or convenient on his part to procure that the sum of $85,000 held by his former solicitors be paid into Court to the credit of the proceedings. Upon Mr Grizonic giving the usual undertaking as to damages, I ordered that until further order Ms Suttor be restrained from transferring, alienating, encumbering or further encumbering her interest in the restaurant business or the debt due to her in connection with her partner’s interest in that restaurant, and from drawing or expending more than $4,000 a month, except upon having given seven days notice of her intention to do so, reserving liberty to Ms Suttor to apply to vary or set side that order. I further directed that by 10 April 2008, Mr Grizonic serve and lodge with my associate copies of any further material upon which he proposed to rely in respect of issue 8. This was because Ms Wade indicated that he wished to adduce further evidence on that issue.

46 The $85,000 was in due course paid into Court to the credit of the proceedings.

47 On or about 7 April, Ms Suttor lodged and served a bundle containing her submissions and supporting material in respect of the issues to be determined on 2 May, and on 10 April, Mr Grizonic likewise served and lodged his submissions and supporting material in respect of those issues.

48 On 28 April, Ms Wade forwarded to my chambers by email a letter advising my associate that she was unable to represent Mr Grizonic on 2 May, that she had discovered crucial evidence that should be relied upon “with regards to all the points that are to be decided on 2 May 2008”, and that she was legally out of her depth and was seeking an adjournment to enable Mr Grizonic to be legally represented. She envisaged that she would be able to find funding to instruct solicitors with whom she had discussed the matter and who would be happy to represent him. She asserted that Mr Grizonic would be prejudiced, as he was incapable of representing himself and his psychiatrist had advised her to seek the advice of the Protective Commissioner; however, there was not then nor has there been since any application before me for the appointment of a tutor. My associate conveyed to both Ms Wade and to Ms Suttor’s solicitor that I would only be prepared to consider an adjournment on the grounds foreshadowed if there were written or oral evidence from a lawyer indicating that he or she would be prepared to act and, if conditional on being put in funds, then evidence from whomever was to provide the funds as to how and when they would be provided. In due course I was provided with copies of titles to lands in New Guinea, which did not establish the land to be in Ms Wade’s name, although I was given an explanation – which was not at all clear – that she was somehow entitled to access their benefit.

49 On 2 May 2008, Mr Grizonic appeared in person and applied for an adjournment of the hearing. He indicated that Ms Wade proposed to sell real property held by her in New Guinea and use the proceeds to put lawyers in funds to act for Mr Grizonic. There was some psychiatric evidence that Mr Grizonic was severely depressed. Ms Wade had apparently decided that she was unable to assist Mr Grizonic only shortly beforehand. I was concerned that Mr Grizonic probably anticipated being represented or assisted by Ms Wade until a late stage, and was now left without assistance in circumstances where his ability to represent his own interests was doubtful. I reluctantly acceded to his application, adjourning the matter for hearing on 3 July 2008 [Grizonic v Suttor, [2008] NSWSC 912]. I appointed 20 June for further directions.

50 On 20 June, there was no appearance on behalf of Mr Grizonic, and I confirmed the hearing for 3 July. On 1 July, at the request of Mr Grizonic, I listed the matter to consider an opposed application, foreshadowed by Ms Wade, that she have leave to appear for him at the hearing on 3 July. Over opposition, I acceded to that application [Grizonic v Suttor, [2008] NSWSC 913]. In response to a query from Ms Wade as to whether certain witnesses would be available on 3 July, I repeated that the only issues to be dealt with would be those previously identified; and that once all the identified issues had been dealt with, I would then give consideration to whether any other, as yet unidentified, issues should be added. I also reiterated that oral evidence in chief would not be entertained – as explicit directions for the exchange of affidavit evidence had previously been made.

51 On 2 July, my chambers received by email from Ms Wade notification that she was withdrawing from representing Mr Grizonic, written submissions apparently prepared by her on behalf of Mr Grizonic, and a request that I disqualify myself. Ms Wade’s written submissions contended that I had made findings that prejudiced the rights of the plaintiff. These contentions apparently related to the issues that I settled on 22 February 2008, and in particular my exclusion of certain issues, on the following bases:

· That the house was not a partnership asset . What I had indicated was that I did not see that it made any difference whether or not the house was a partnership asset; it had been sold by the s 66G trustees, and there did not seem to be any reasonable basis for contending that it was an asset of the restaurant partnership as distinct from property held in co-ownership. Any claim for an occupation fee or contribution in respect of the mortgage arose not on the taking of accounts in respect of the partnership, but as between co-owners. However, I had preserved the opportunity to agitate such claims, as issue 9.1. Moreover, as the balance proceeds of sale had been paid into Court, any claim to them could be agitated on a motion for payment out;

· That it was irrelevant whether or not there was a de facto relationship . What I had said was that evidence as to when the de facto relationship ended did not seem to be of any relevance in the absence of any application under the (NSW) Property (Relationships) Act 1984 . Although there does not seem much doubt that there was a de facto relationship at least for a period, the rights at issue in these proceedings are not dependent on the existence (or not) of any such relationship;

· That any complaint about the lease was a complaint against the receivers, not against Ms Suttor . Mr Grizonic complained that the restaurant business, including its leasehold, had been sold by the receivers at an undervalue to Ms Suttor. I expressed the view that a claim arising from the receivers’ sale of the partnership asset was one that lay, if at all, against the receivers and not one which arose on the taking of accounts. Mr Grizonic wishes to contend that the undervalue was brought about by misrepresentation and concealment by Ms Suttor. I accept that that might found some claim against Ms Suttor, but it is not one that arises on the taking of partnership accounts. It remained open to Mr Grizonic to contend that this issue should be added to the list, but he did not (until 2 June 2008) do so.

· That falsification of the partnership records had not caused any loss to Mr Grizonic, because the receivers sold the business for what it was worth . What I had said was that establishing turnover and profit in any particular year was immaterial unless it were established that a party had received benefits which had not been brought to account. The starting point for the assets of the partnership was what had been realised by the receivership, whatever might have been turnover in the past. Mr Grizonic wishes to contend that Ms Suttor falsified the partnership records so as to conceal its true turnover and value. This falls into the same class as the previous point: while it might found some claim against Ms Suttor, it is not one which arises on the taking of partnership accounts, and it remained open to Mr Grizonic to contend that this issue should be added to the list, but he did not (until 2 June 2008) do so.

· In not setting aside the order for an account to be taken, when it was Ms Suttor who presumably destroyed the records that frustrated the taking of accounts . It was submitted that Mr Grizonic and not Ms Suttor should have the election between an account of profits or damages, and that if the account went ahead, the plaintiff’s right to equitable compensation for breach of trust would be extinguished. This completely misconceives the nature of the proceedings: the taking of accounts between partners is not an account of profits, but simply seeks to establish what are or should be the partnership assets and liabilities, and the interest of each of the partners in them. It was precisely to enable Mr Grizonic’s claims, that certain assets in Ms Suttor’s hands should be regarded as assets of the partnership, to be pursued on the taking of accounts, that proceedings 2475/05 were transferred to Equity. Such issues are reflected, in particular, in issues 1, 3 and 6.

52 In any event, at the conclusion of the proceedings on 29 February, I informed Mr Grizonic, through Ms Wade, that if there were issues additional to those in the list that they wished to agitate, they should be specified, and I directed that by 14 March each party serve and lodge that party’s proposed list of issues for determination, indicating what issues that party proposed be added to and deleted from the draft; it was in response to the document lodged by Ms Wade that issues 9.1 and 9.2 were added. It was manifest that my observations on 29 February were tentative views, and that the parties were permitted to contend that issues should be added to or deleted from the draft list. And even if I were in error in any of the respects alleged, that would not establish a reasonable apprehension of bias.

53 Mr Grizonic appeared in person on 3 July – he said because Ms Wade felt threatened by me, and in particular by my order directing that no further interlocutory applications be filed without leave, coupled with an indication that it was a contempt to do so when one such motion was presented without leave. I observed Ms Wade appear before me on several occasions, and she did not appear the slightest intimidated. Her litigious history does not suggest that she is easily intimidated by judges [In the Marriage ofTrnka (1984) 10 Fam LR 213; (1984) FLC ¶91-535; Wade (formerly Trnka) v Trnka (1996) 135 FLR 198; (1996) FLC ¶92-711; Wade v Trnka [2006] NSWSC 1097].

54 Mr Grizonic maintained that I had said that he could not use all the evidence he had assembled; this, of course, was incorrect: I directed that the submissions identify what evidence each party wished to rely on in respect of each of the issues to be heard on 3 July, and indicated several times that they would limited in chief to the affidavit and documentary evidence and not permitted to give additional oral evidence in chief, but never that evidence could not be used.

55 When I asked Mr Grizonic on what basis it could be said that a reasonable ordinary person sitting in the back of the court room would think he was not going to get a fair hearing, he answered “I don’t know. That was alleged because you don’t let me put all evidence in files, and files of evidence …”. It was pointed out that I had rejected his opponent’s application to have his case summarily dismissed for non-prosecution, acceded to his own application to transfer the common law proceedings to be heard with the Equity proceedings, rejected his opponent’s application for security for costs, granted an injunction on his application restraining Ms Suttor from dissipating assets, granted an adjournment (on 2 May) when the matter had been fixed for hearing on the apparently tenuous grounds then advanced, and acceded to his application that Ms Wade be permitted to appear on his behalf; Mr Grizonic, when asked what decision I had made that would found a belief that he was not going to get a fair hearing, answered “I don’t know. I don’t understand”.

56 I therefore refused to disqualify myself. Ms Wade’s submissions, coupled with the announcement they contained of her intention to withdraw, demonstrated a calculated course of endeavouring to ensure that the matter could not proceed on 3 July. I concluded that the application for disqualification was not bona fide but a stratagem, to endeavour to deflect the Court from proceeding to hear the case.

57 I then embarked upon the hearing, indicating that I would proceed issue by issue, identifying the evidence relied on by each side on the issue, and then hearing cross-examination on that issue. At that point, Mr Grizonic said: “Your Honour, I can’t represent myself. I don’t know. You go ahead do whatever you want … you make an order against me whatever you want. That’s all. Proceed”. He then said: “I give you this. They told me to give you”, and handed up two unfiled motions. One sought leave to amend his summons to include a declaration claiming a breach of trust (which is entirely superfluous, given the identified issues, in particular issues 1, 3, 4, 5 and 6) or leave to file a statement of claim for a declaration of breach of trust (which in substance is what his statement of claim in the common law proceedings already seeks). The other claimed “a stay of the orders made by Justice Brereton on 3 July 2008” pending the determination of an appeal to the Court of Appeal. This reinforced my conclusion that the disqualification application was a stratagem to defer any hearing.

58 Mr Grizonic then left the Court. Mr Jungwirth, for Ms Suttor, indicated that although, prima facie, the balance of account was in her favour (according to the evidence of Mr Hogden), she would not press for a substantive order in her favour (save as to costs) and was content that proceedings on the account be stayed pursuant to (NSW) Uniform Civil Procedure Rules, r 46.9, which provides as follows:

If it appears to the court that there is delay in the prosecution of any account, inquiry or other matter under a judgment, the court may make such orders as it thinks fit for staying or expediting the proceedings or for the conduct of the proceedings.

59 In In Re Cornish Tin Sands Ltd, Bastard v The Company [1918] WN 377, on a summons under the equivalent rule, for an order that the plaintiffs explain their delay in prosecuting the proceedings for three years following the appointment of a receiver, Peterson J stayed the proceedings.

60 In addition to that rule, (NSW) Civil Procedure Act 2005, s 56, expresses the overriding purpose of the Act and Rules as being to facilitate the just, quick and cheap resolution of the real issues in the proceedings, and commands the Court to give effect to that purpose when exercising any power given by the Act or Rules of Court. Parties are under a duty to assist the Court to further that purpose, and, to that effect, to participate in the processes of the Court and comply with directions and orders. Section 57 requires that proceedings be managed having regard to their just determination, the efficient disposal of the business of the Court, the efficient use of available judicial and administrative resources, and the timely disposal of the proceedings and all other proceedings at a cost affordable by the respective parties. Section 58 provides that in deciding whether to make an order – including an order granting an adjournment or stay of proceedings – the Court must seek to act in accordance with the dictates of justice, for the purpose of determining which it must have regard to ss 56 and 57, and may have regard, inter alia, to the degree of expedition with which the respective parties have approached the proceedings, including timeliness in their interlocutory activities, the degree to which they have fulfilled their duties under s 56(3), the use that any party has made or could have made of opportunities available in the course of the proceedings, the degree of injustice that would be suffered by the respective parties as a consequence, and such other matters as the Court considers relevant. Section 59 requires that the Court implement its practice and procedure with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for interlocutory activities necessary for the fair and just determination of the issues in dispute in the preparation of the case for trial. Section 60 provides that the practice and procedure of the Court should be implemented with the object of resolving the issues between the parties in such a way that the costs are proportionate to the importance and complexity of the subject matter in dispute.

61 These proceedings have now been before the Court for more than 110 adjudications. A final hearing has been appointed three times, and although the vacation of the first cannot be attributed solely or even primarily to fault on the part of Mr Grizonic, the case was obviously not then ready to be heard on either side. Mr Grizonic’s repeated applications for adjournment of the second and third – on 2 May and now on 3 July 2008 – and his continuing opposition to the taking of accounts, in a context where the Court had earlier refused an application for dismissal for want of prosecution, and done what it can to facilitate the identification of precise issues for resolution, demonstrate that Mr Grizonic will not cooperate in the process of addressing what the Court has, with input from the parties, identified to be the real issues of substance in dispute, although he has been afforded ample opportunity to do so. In Mr Jungwirth’s words, the case has been “micro-managed” by identifying and making directions for evidence and argument on discrete issues, in “bite-sized chunks”, to facilitate the process, largely for Mr Grizonic’s benefit. He is either unwilling or unable to understand that this is the appropriate process for agitating at least many of the issues he wishes to pursue.

62 Mr Hogden’s affidavit established a starting point from which the process of taking accounts, and resolving objections, surcharges and falsifications could proceed. The prima facie position it established is that, on balance of accounts between the partners, Mr Grizonic is liable to Ms Suttor. I appreciate that Mr Grizonic contends that the accounts prepared and conclusions reached by Mr Hogden are wrong, including in particular by reason that Ms Suttor should bring to account funds “misappropriated” by her from the partnership (including those paid by way of consultancy fees, and cash receipts not accounted for). However, those were issues to be resolved on the taking of accounts – see issues 2, 3 and 6 – which Mr Grizonic has failed to prosecute.

63 The financial position of Ms Suttor appears to be modest indeed, and that of Mr Grizonic destitute. Moreover, as Campbell J pointed out on the security for costs application before him – and notwithstanding my acceptance that security should not be ordered in respect of proceedings 6141/03 – the probability of there being any surplus that would benefit Mr Grizonic personally, after payment of creditors pursuant to the personal insolvency arrangement, is slight, and the utility of the proceedings dubious in the extreme. This is moreso now that the proceedings against Maurice Blackburn Cashman have been dismissed. In that context, the injustice to Mr Grizonic occasioned by staying the account is slight. The protraction of the proceedings would involve costs disproportionate to what is in issue, and would be a grossly inefficient use of Court and judicial resources, in circumstances where the prima facie state of the accounts, and the respective financial positions of the parties, indicates little utility in the exercise. Given Mr Grizonic’s financial position, costs orders against him are no antidote to the prejudice his defaults occasion.

64 This is a case in which the complexity and cost – not only to the parties but to the Court – of the litigation, the difficulties which beset it, the prima facie state of the accounts established by Mr Hogden’s affidavit, the apparent inutility of the proceedings, and the repeated failure of Mr Grizonic to pursue them in a manner which could facilitate their resolution, combine to make it one which ought not be permitted to proceed any further [cf Schellenberg v British Broadcasting Coorporation [2000] EMLR 296; Wallis v Valentine [2002] EWCA Civ 1034; [2003] EMLR 8; Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75; [2005] QB 946, [67]-[76]].

65 Mr Grizonic having declined to participate, and Ms Suttor abandoning any claim to an order in her favour other than as to costs, I determined to stay the taking of accounts. The issues as against Ms Suttor in proceedings 2475/05 overlap those in the account, as do those in 1960/08; accordingly, they too will be stayed.

66 That will not entirely dispose of the proceedings; in 6141/03, the net proceeds of the East Ryde property have been paid into Court to the credit of the proceedings, and upon either party making an application for payment out of Court, it will remain open to them to agitate questions relating to their respective contributions to the property, and any entitlement of Mr Grizonic to an occupation fee after he quit the property.

67 For those reasons, on 3 July 2008 I made the following orders:

A. In proceedings 6141/03:
1. Pursuant to UCPR , r 46.9, order that further proceedings under order 11 made on 5 February 2004 be stayed.
2. Order that the plaintiff pay the defendants’ costs of the proceedings on the account and inquiry to date, save insofar as any special costs order otherwise provides.

B. In proceedings 2475/05:
1. Order that the proceedings as against the third defendant (Ms Suttor) be dismissed.
2. Order that the third defendant’s cross-claim be dismissed.
3. Order that the plaintiff pay the third defendant’s costs.

C. In proceedings 1960/08:
1. Order that the proceedings be stayed.
2. Order that the plaintiff pay the defendant’s costs.

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